Accountability and Oversight: Nova Scotia’s new Powers of Attorney Act
Long-awaited amendments to the Province’s currently short-and-sweet Powers of Attorney Act1 received Royal Assent on Friday, April 22, 2022. While not yet proclaimed into effect, the amended Powers of Attorney Act (the “New Act”) is poised to clarify and codify many of the common law rules governing attorneys, interested persons, signing procedures and document preparation specifics for powers of attorney in Nova Scotia.
Similar to the updates made in New Brunswick in 2020, the proclamation of the New Act will demonstrate a commitment at the Provincial level to improving protection for incapacitated individuals and addressing issues of financial abuse, while generally modernizing the legislation.
Key provisions of the New Act have been summarized, below. For the reader’s reference, the “donor” is the individual appointing an attorney, and the “attorney” is the individual appointed pursuant to the power of attorney document. The most commonly used type of power of attorney, an enduring power of attorney, is one that is effective as of the date it is executed and which continues in force during the donor’s subsequent legal incapacity. Except where otherwise provided, the powers of attorney referenced herein are enduring powers of attorney.
Many estate practitioners would recall the Law Reform Commission of Nova Scotia’s (the “Commission”) Discussion Paper on the Powers of Attorney Act of March 2014 (the “Report”), wherein the Commission made a series of proposals to be considered in drafting the New Act. The New Act substantially aligns with the Commission’s recommendations from 2014. Overall, the changes indicate a trend toward oversight and administrative responsibilities for donors and attorneys alike, and increase the level of contact required between donors, their attorneys, and other relevant individuals, such as the donor’s family.
Like wills in Nova Scotia, the New Act requires that every power of attorney now be executed in the presence of two independent witnesses, as opposed to one. The witnesses must be the age of majority (being 19), both present at the time the donor signs the document, and cannot be the attorney or the spouse, registered domestic partner, common law partner, or child of the attorney.2
Formerly, the witness to the document had to be the age of majority, and could not be the attorney or the spouse of the attorney. This change is one of many that attempts to limit the possibility of financial abuse and undue influence, by providing further oversight of the donor executing the document and generally involving more people in the process. This signing requirement is easy to satisfy if signing in a lawyer’s office, but proves more difficult if parties are signing their documents at home.
The New Act codifies the common law approach previously employed in Nova Scotia with respect to springing powers of attorney. A springing power of attorney comes into effect only upon the donor losing capacity. Section 8(5) of the New Act provides the attorney’s authority may be exercised only once it is determined that the donor lacks capacity with respect to their financial affairs.
Section 8(3) of the New Act provides that, in addition to a medical practitioner, the donor may name a specific individual to determine that the donor has lost capacity, and this could be the attorney themselves. Regulations drafted under the New Act have not been made available, yet, but there may be more information to come regarding this role.
Except as otherwise expressly provided in the power of attorney or as directed by the donor, attorneys may not effect gifts from the donor’s estate pursuant to the New Act. Going further, even when directed or authorized to do so, an attorney may not make an authorized gift where it would compromise the estate’s ability to fund the donor’s needs. This is, again, reflective of the common law and the Commission’s recommendations in the Report.
Generally, a broad ability to effect gifts as an attorney can lead to instances of financial abuse and misuse of the power, as well as difficulties in challenging inappropriate attorney conduct. Strictly limiting an attorney’s ability to make gifts on a donor’s behalf is intended to curtail these issues.
Evaluation of Capacity
The New Act introduces a much more robust capacity analysis than the common law test that used to apply. In particular, the donor must be able to understand and appreciate the type of property they own and its approximate value, the legal obligations they owe to dependants, the attorney’s role and the risks associated with appointing an attorney, and their ability to revoke the appointment while they remain capable.
These criteria confirm the Court’s decision in Re Isnor Estate3, citing with approval the finding in Godelie v Paulie (Committee of)4 as presented by the Commission in the Report. Most other provincial power of attorney statutes address what constitutes capacity to execute a power of attorney, and the definition most commonly centres on the donor’s ability to understand and appreciate the nature and effect of that appointment.
The New Act appears to go one step further, incorporating the broader considerations introduced by the Courts in the above-cited cases, and generally requiring the donor be of particularly sound mind in order to be deemed capable to execute a power of attorney. However, where the donor also retains the ability to determine who may assess their capacity once the power of attorney is effective, a more thorough definition may assist the lay attorney with making that determination.
Further, an attorney must now consult with a donor even after they have lost capacity, if reasonable to do so, in order to ascertain instructions prior to acting. If the donor is sufficiently able to provide instructions, the attorney must follow the most recent relevant instructions from the donor, even if they are inconsistent with prior instructions.
The former Powers of Attorney Act contemplated persons interested in the estate of the donor, in broad terms, but did not provide a definition of these individuals nor their rights as against an attorney. The New Act establishes a definition for an “interested person”, and includes:
- the donor’s spouse, registered domestic partner or common law partner,
- an adult child of the donor,
- an adult grandchild of the donor,
- an adult great-grandchild of the donor,
- a parent of the donor,
- an adult sibling of the donor,
- an adult niece or nephew of the donor,
- the Public Trustee,
- an attorney or a monitor or any other person listed in the power of attorney,
- the donor’s delegate in the donor’s personal directive or equivalent document,
- a representative of a care home where the donor is residing, and
- following the donor’s death, a personal representative of the donor’s estate.
In contrast with recent case law in Nova Scotia5, common law couples are brought into the fold and given standing to bring forward issues against the attorney or to seek direction from the Court in connection with the power of attorney.
Accounts and the Role of the Monitor
In keeping with the trend toward broader accountability and oversight, attorneys have a duty, pursuant to section 12 of the New Act, to preserve and keep records regarding the donor’s assets and liabilities and the attorney’s transactions. These include all assets and liabilities under their control on behalf of the donor, including values if they are known, and all records of transactions undertaken under the appointment, including receipts, cheques, cancelled cheques, invoices, and relevant correspondence.
Regulations, which will be forthcoming, may prescribe other information for which the attorney must keep records. The donor, interested persons, or the monitor (as discussed below) can request that these records be presented at any time.
A donor may now appoint a monitor in a power of attorney; this is an individual who is not the attorney, but who may visit and communicate with the donor, request records from the attorney, demand an accounting, and apply to the Court for direction or any other application available under section 18(1) of the New Act. A monitor effectively acts as a supervisor of the attorney and keeps the donor and any other co-attorneys informed of the conduct of one or more of the attorneys. This role is similar to that of “protectors” in trusts, but is now statutorily authorized in powers of attorney.
Presumption to Act Jointly and Majority Rules
Where the donor has appointed multiple attorneys under a power of attorney, unless the document provides otherwise, the attorneys shall act jointly. If there are more than two attorneys, the decision of the majority is deemed to be the decision of all. This is a change from the common law.
Notice of Acting, Revocation and Variation
When an attorney begins to act pursuant to a power of attorney, they are required under the New Act to give notice to the persons to whom notice is required to be given, pursuant to the terms of the power of attorney. If the document itself does not provide for any individuals, the attorney shall deliver notice to the immediate family members of the donor, as well as any delegate appointed under a personal directive. This adds some complexity where the attorney may not necessarily be familiar with the immediate family of the donor, and will require sufficient record-keeping to ensure this responsibility is being discharged.
An attorney must also provide either the donor, the monitor, the other attorneys, or the immediate family members, as the case may be, notice of their resignation as attorney. If there is no individual available to receive such notice, it must be served by the attorney on the Public Trustee.
A new burden on donors is the requirement to provide notice to each attorney upon varying or revoking a power of attorney, whether or not the attorney had begun to act. This may cause some discomfort where attorneys are being removed or replaced as a result of challenging relationships, and adds a contact requirement where none existed before. Section 17(4) of the New Act suggests that until such time as this notice is given to the attorneys and any other individual prescribed by the regulations, the revocation will not be effective.
Powers from Outside of Nova Scotia and Substantial Compliance
A power of attorney made outside of Nova Scotia will be deemed valid in Nova Scotia if (a) a person gives another person authority under the document to act on the person’s behalf in relation to matters of property and finances; and (b) the document is valid according to the law of the place where it was made. This is consistent with other Provincial legislative amendments, and formally acknowledges that powers of attorney made in other jurisdictions are, in fact, valid and usable in Nova Scotia.
Where some donors may only spend limited time in Nova Scotia, have assets elsewhere, or generally wish to make use of an existing power of attorney in Nova Scotia, this eliminates the need for donors to have a Nova Scotia-specific power of attorney drafted. The Nova Scotia Personal Directives Act6 already provides a similar jurisdictional recognition provision.
Further, the New Act provides the Court with the ability to confirm and validate an otherwise invalidly executed power of attorney. Doing so provides flexibility and does not require an attorney to conform strictly to the rigidity of the New Act, while bringing a non-conforming power of attorney under court scrutiny.
Existing valid powers of attorney that do not conform to the formalities set out in the New Act but were valid under the old Act remain valid and effective. But as the New Act ultimately provides much greater drafting flexibility for lawyers and donor clients, as it has now been clearly stipulated that a donor may maintain significant control over an attorney’s conduct, it is expected that older powers will be replaced by new ones under the New Act.
Of note, the Province has made no mention of virtual witnessing or providing parties flexibility with respect to executing documents. Other jurisdictions, including New Brunswick, have addressed this in response to the COVID-19 pandemic. However, in keeping with our government’s silence with respect to virtual witnessing of wills and other estate planning documents, it is perhaps no surprise that virtual or counterpart witnessing is not yet available to individuals signing powers of attorney.
The Province further has made no mention of a registry for powers of attorney, despite a recommendation for that being made by the Commission. A registry of powers of attorney and personal directives, as contemplated in the Commission’s Report, would assist financial institutions and physicians and other healthcare providers by having a reliable source to determine appointed persons in times of need. The administrative burden, however, would be significant for both the Province and practitioners in ensuring the Registry is kept up to date as documents change.
The New Act, once in force, will provide greater safeguards to the particularly vulnerable in this Province and codify many of the existing common law rules. There are, however, gaps in the legislation that may be supplemented once regulations are released.
As of the date of this Article, the New Act has not yet been proclaimed.
This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Estates & Trusts group.
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1RSNS 1989 c 352.
2 See s. 3 of the New Act
3 2001 CanLII 25721 (NSSC).
4 (1990) 3 ETR 40; 21 ACWS (3d) 1251 (Dist Ct).
5 See for example LeBlanc v Cushing Estate, 2020 NSSC 162 and Jackson Estate v Young, 2020 NSSC 5.
6 SNS 2008 c 8.
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