Powers of Attorney:Making the new Act work

Presented By:Presented By:Andrea E. FrisbyAndrea E. Frisby

Legacy Tax + Trust LawyersLegacy Tax + Trust Lawyers510-609 Granville Street510-609 Granville Street

Vancouver, BC V7X 1M6Vancouver, BC V7X 1M6Tel: (604) 631-1298Tel: (604) 631-1298

Introduction

Statutory changesStatutory changesSetting up the EPASetting up the EPAGeneral dutiesGeneral dutiesSpecific dutiesSpecific dutiesSpecific new toolsSpecific new tools

Setting up the EPA

Who is the clientWho is the client Witnessing issuesWitnessing issues What should the attorney knowWhat should the attorney know When do the duties startWhen do the duties start

Effective dateEffective dateSpringing powersSpringing powersExisting PowersExisting Powers

General Duties

Codified in the Act – section 19Codified in the Act – section 19Fiduciary Fiduciary

• ““Honestly and in good faith”Honestly and in good faith”Standard of care – “reasonably prudent person”Standard of care – “reasonably prudent person”Must act within the authority given in EPAMust act within the authority given in EPALiability for breach – section 22Liability for breach – section 22

Specific duties

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

with the willwith the will

Specific duties cont.

Involving the adultInvolving the adultwhat does this mean for attorneywhat does this mean for attorneypotential for conflictpotential for conflict““current wishes” vs. “known beliefs”current wishes” vs. “known beliefs”McMullen v. WebberMcMullen v. Webber direction from court – section 36(1)(a)direction from court – section 36(1)(a)

Specific duties cont.

Records requirementsRecords requirements• ““reasonable effort” once “acting”reasonable effort” once “acting”• collect, assemble and keep records of collect, assemble and keep records of

financial transactionsfinancial transactions• catch up requirements for current attorneyscatch up requirements for current attorneys• liabilityliability

Supervision

Enhanced supervision of attorneysEnhanced supervision of attorneysreport to Public Guardian and Trusteereport to Public Guardian and Trustee

investigation authorityinvestigation authorityfailure to comply with dutiesfailure to comply with dutiesremediesremedies

Specific New Tools Gifting provisions – section 20Gifting provisions – section 20

Regulation, section 3Regulation, section 3Modest authorityModest authorityHow does attorney ascertain How does attorney ascertain pattern of giving – confirm pattern of giving – confirm criteria with Adultcriteria with Adult

Interplay with gifts under Will Interplay with gifts under Will - section 19(3)(d)- section 19(3)(d)

Specific New Tools cont.

Designating beneficiaries – limited Designating beneficiaries – limited power to fix technical problempower to fix technical problem Desharnais v. Toronto Dominion BankDesharnais v. Toronto Dominion Bank Best interests of adultBest interests of adult Litigation potentialLitigation potential

““test” for court to change test” for court to change beneficiarybeneficiary

what is a “similar instrument”what is a “similar instrument”interplay with interplay with inter vivosinter vivos planning and/or wills variationplanning and/or wills variation

Specific New Tools

Information and recordsInformation and recordsIncapability of AdultIncapability of AdultAn area of authority granted An area of authority granted to attorneyto attorneyestate planning and Willestate planning and WillSolicitor-client privilegeSolicitor-client privilegenon-disclosure – section 33non-disclosure – section 33

When do the duties end?

Revocation, suspension or terminationRevocation, suspension or terminationRevocation in writing to the attorney – Revocation in writing to the attorney –

section 28section 28Resignation - section 25Resignation - section 25Suspension or terminationSuspension or terminationLiability and improper useLiability and improper use

Conclusion

Codified dutiesCodified duties New specific toolsNew specific tools More information and More information and knowledge to both Adult and knowledge to both Adult and attorneyattorney

Standards for processStandards for process AccountabilityAccountability

Questions?

Everything should be made as Everything should be made as simple as possible, but not simple as possible, but not simpler.simpler.

Albert EinsteinAlbert Einstein