Power of Attorney

Powers of Attorney: Making the new Act work Presented By: Andrea E. Frisby Legacy Tax + Trust Lawyers 510-609 Granville Street Vancouver, BC V7X 1M6 Tel: (604) 631-1298

Introduction
Statutory changes
Setting up the EPA
General duties
Specific duties
Specific new tools

Setting up the EPA
Who is the client
Witnessing issues
What should the attorney know
When do the duties start
Effective date
Springing powers
Existing Powers

General Duties
Codified in the Act – section 19
Fiduciary
“ Honestly and in good faith”
Standard of care – “reasonably prudent person”
Must act within the authority given in EPA
Liability for breach – section 22

Specific duties
Investment
Investment authority must be express
Default is section 15.1 of Trustee Act
Delegation of investment authority – section 23(2)
Interplay with duties to keep assets and not interfere with the will

Specific duties cont.
Involving the adult
what does this mean for attorney
potential for conflict
“ current wishes” vs. “known beliefs”
McMullen v. Webber
direction from court – section 36(1)(a)

Specific duties cont.
Records requirements
“ reasonable effort” once “acting”
collect, assemble and keep records of financial transactions
catch up requirements for current attorneys
liability

Supervision
Enhanced supervision of attorneys
report to Public Guardian and Trustee
investigation authority
failure to comply with duties
remedies

Specific New Tools
Gifting provisions – section 20
Regulation, section 3
Modest authority
How does attorney ascertain pattern of giving – confirm criteria with Adult
Interplay with gifts under Will - section 19(3)(d)

Specific New Tools cont.
Designating beneficiaries – limited power to fix technical problem
Desharnais v. Toronto Dominion Bank
Best interests of adult
Litigation potential
“ test” for court to change beneficiary
what is a “similar instrument”
interplay with inter vivos planning and/or wills variation

Specific New Tools
Information and records
Incapability of Adult
An area of authority granted to attorney
estate planning and Will
Solicitor-client privilege
non-disclosure – section 33

When do the duties end?
Revocation, suspension or termination
Revocation in writing to the attorney – section 28
Resignation - section 25
Suspension or termination
Liability and improper use

Conclusion
Codified duties
New specific tools
More information and knowledge to both Adult and attorney
Standards for process
Accountability

Questions?
Everything should be made as simple as possible, but not simpler.
Albert Einstein

Power of Attorney

by FVCAA on Feb 09, 2012

Accessibility

Categories

Upload Details

Usage Rights

1 Embed 12

Statistics

Power of Attorney — Presentation Transcript