Powers of Attorney Act Considering Reform Thoughts for Current Practice Kelly L. Greenwood Barrister & 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 Phone (902) Write to: Law Reform Commission of Nova Scotia 2 nd Floor, 1484 Carleton Street Halifax, Nova Scotia B3H 3B7 COMMENTS OPEN TO JUNE 30, 2014