Powers of Attorney ActConsidering Reform

Thoughts for Current Practice

Kelly L. GreenwoodBarrister & Solicitor

Overview

Background Discussion About Reform:

Scope and Capacity/Formalities Donor Appointments/Attorney Duties Monitoring/Accounting Varying/Terminating Public Education/Abuse

Thoughts on Current Practice

Background

Common Law – Agency Law 1970’s Reform Discussions May 25, 1988 – Change Arrives in Nova

Scotia Use of Enduring Powers of Attorney

Scope and Capacity

Presume Capacity, or not? Define Capacity Assess Capacity Declare Contingency Trigger Confidential Information

Formalities

Writing, Date, Signature Witnesses Witness Statements Independent Legal Advice Attorney Acceptance

Donor Appointments

Who Can Act? Impact of Criminal Convictions Undischarged Bankrupts Paid Personal Care Workers Security Decision Making by Joint Attorneys Scope of Authority Compensation/Reimbursement

Donor Rights

Continuing to Act Revocation Requiring an Accounting Requiring Donor’s Interests be Served

Attorney Duties

Duty of Loyalty Follow Instructions Avoid Conflicts No Co-Mingling/Self Dealing No Delegating Account to Donor

Duty of Care

Expanded Attorney Duties

Duty to Act Facilitating Contact Making Investments Preserving Donor’s Will

Monitoring and Accounting

Registration Notice of Attorney Acting Keep Records Account – To Whom?

Varying and Terminating

By Donor By Court Revocation Irrevocability

Public Education

Standard Forms Public Legal Education Best Practices Mandatory Termination

Thoughts on Current Practice

Trust is Crucial Name Alternate(s) Witness Statement of Capacity Include Duty to Account Identify Recipient(s) of Accounting List Duties List Examples of Powers

Questions, Comments, Discussion

Think and Talk about the Issues Send Comments to the Law Reform Commission

Email info@lawreform.ns.ca Phone (902) 423-2633 Write to:

Law Reform Commission of Nova Scotia

2nd Floor, 1484 Carleton Street

Halifax, Nova Scotia B3H 3B7

COMMENTS OPEN TO JUNE 30, 2014