Capacity
The PAA now sets out a test as to the requisite capacity to make an enduring power of attorney. An adult “is incapable of understanding the nature and consequences of a proposed enduring power of attorney” if unable to understand all of the matters specifically enumerated in s. 12(2), or as may be prescribed by regulation. Lawyers should carefully assess whether an adult is capable of making an enduring power of attorney in accordance with the test, and should retain notes or other documentation relating to that assessment. A lawyer who fails to make appropriate inquiries as to capability may later face a claim from the adult, or representative of the adult, if a power of attorney is abused by the attorney.
Content
Section 14 stipulates that an enduring power of attorney must indicate whether the attorney may exercise authority while the adult is capable or only while the adult is incapable, and that the attorney’s authority continues despite the adult’s incapability. Lawyers drafting enduring powers of attorney should ensure that the elements required by s. 14 are included, as appropriate.
"Springing" powers of attorney
Section 26(2) provides that, if an enduring power of attorney is to take effect when a subsequent event occurs, the adult must state in the document how, and by whom, the event is to be confirmed. Lawyers drafting springing powers should take care in describing the triggering event and how the s. 26(2) requirements will be met.
Execution
Section 16(1) provides that an enduring power of attorney must be signed and dated by the adult in the presence of two witnesses, and by the witnesses in the presence of the adult. Only one witness is required if the witness is a practising lawyer or notary (s. 16(4)). Certain people are not to act as witnesses. (s. 16(6)).
Remember as well that, to be effective for Land Title Act purposes, an enduring power of attorney must be executed and witnessed in accordance with the Land Title Act (s. 16(5)).
If execution is flawed, an application may be brought under s. 36(3) for an order that the power of attorney is valid despite any defect in its signing. The lawyer involved in execution may, however, face a claim for the cost of such an application or of an application for appointment of a property guardian.