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Monday, November 30, 2015
Saskatchewan Justice

The Powers of Attorney Act, 2002 provides for the use of enduring or continuing powers of attorney, including contingent enduring powers of attorney.

Power of attorney

A power of attorney is a document in which a person (the "grantor") appoints another person (the "attorney") to act on his or her behalf in connection with his or her personal or financial affairs.

A power of attorney may be general, covering all of the grantor's personal affairs, or specific, limiting the attorney's authority to a specific purpose, such as the sale of property on the grantor's behalf.

Enduring power of attorney

An enduring power of attorney (EPA) is a power of attorney that states that it is to continue in effect even if the grantor becomes incapacitated.

There are two types of EPAs:

  • the first type takes effect immediately; and
  • the second type comes into effect on a specified future date or on the occurrence of a specified event (e.g., when the grantor becomes mentally incapable, or when the grantor leaves the country for an extended period). This is a contingent power of attorney (sometimes called a "springing" power of attorney).

The Act provides for a determination of when the specified contingency is conclusively deemed to have occurred for the purpose of bringing the contingent enduring power of attorney into effect. The EPA may name someone to declare, in writing, that the contingency has occurred. If the contingency is the lack of capacity of the grantor and no person is named or able to act, two members of prescribed professional groups may make the declaration. If the contingency is not the grantor's incapacity, an application may be made to the Court of Queen's Bench for a declaration.

Requirements for a valid enduring power of attorney

An EPA can be made at any time if the grantor is at least age 18 and mentally competent. It must:

  • be in writing;
  • be dated and signed by the grantor; and
  • either be witnessed by a lawyer and accompanied by a legal advice and witness certificate, or be witnessed by two competent adults, other than the attorney or a family member of the grantor or attorney, and accompanied by two witness certificates.

Saskatchewan recognizes enduring powers of attorney, including contingent enduring powers of attorney, made outside the province if the EPAs are valid according to the law of the place where they were made.

Who can act as an attorney

An attorney can be an individual or a corporation. The attorney does not have to be a lawyer, and does not have to be a resident of Saskatchewan to act for someone living in Saskatchewan. He or she may be a family member, friend, advisor or other person.

Attorneys must be at least 18 years of age and mentally competent. A person is not allowed to act as an attorney if he or she:

  • is an undischarged bankrupt (in the case of a property attorney);
  • has been convicted within the last ten years of a Criminal Code offence for an act of violence, theft, fraud or breach of trust (unless he or she is pardoned or, while the grantor has capacity, discloses the conviction to the grantor who consents to the person acting); or
  • is in the business of providing personal or health care services to the grantor for compensation.

The grantor can appoint more than one attorney and give each specific powers or state that they are to act separately, together, or successively when dealing with his or her affairs.

Unless an enduring power of attorney states otherwise, two or more attorneys are deemed to be appointed to act jointly and their decisions must be unanimous. If one or more attorneys is unable to act, the remaining attorney or attorneys may continue to act.

A grantor may also appoint a corporate attorney (e.g., a financial institution) which must disclose its fees in writing to the grantor before the grantor signs an enduring power of attorney.

Duties of an attorney

The person who acts as attorney is responsible to the grantor for making decisions about his or her financial affairs. The attorney must act honestly, in good faith, in the best interests of the grantor, and with the care reasonably expected of a person with the attorney's experience and expertise.

Attorneys are allowed to charge a fee for their services as set out in the EPA, as set by the court, or in line with the fee schedule in the Regulations. An attorney who charges a fee must provide an annual accounting to:

  • the grantor; or
  • if the grantor lacks capacity, a person named by the grantor in the EPA or, if no person is named, to the grantor's nearest available adult family member (other than the attorney) and to the Public Guardian and Trustee.

Even if an attorney does not charge a fee for services, the attorney has a duty to account to the grantor upon request. The grantor or, if the grantor lacks capacity, a person named by the grantor in the EPA or, if no person is named, an adult family member of the grantor may request an accounting at any time. If an accounting is not provided, any interested person may ask the Public Guardian and Trustee to direct the attorney to provide an accounting and may carry out an investigation to ensure the accuracy of the accounting. If the Public Guardian and Trustee does not direct the attorney to provide an accounting or the attorney does not do so, the grantor or, if the grantor lacks capacity, another interested person, or the Public Guardian and Trustee, may apply to the Court of Queen's Bench to direct the attorney to provide an accounting.

A grantor can cancel an enduring power of attorney

The authority of an attorney under an enduring power of attorney ends:

  • on the date specified in the EPA;
  • if the grantor revokes the EPA in writing and is mentally capable;
  • on the grantor's death;
  • on the attorney's death or lack of capacity;
  • if the attorney resigns in writing;
  • if the attorney is prohibited from acting (e.g., declared bankrupt);
  • if a decision-maker for the grantor or attorney is appointed under The Adult Guardianship and Co-decision-making Act or The Public Guardian and Trustee Act;
  • if the grantor and attorney end their spousal relationship;
  • if the Court is satisfied, on the application of any interested person, that an attorney has abused his or her authority; and
  • when an attorney’s authority terminates he is she is required to provide a final accounting in the prescribed form within 6 months of the authority terminating.

Protection for third parties and attorneys

For all powers of attorney, the Act provides there is no liability for third parties who do not know that a power of attorney has terminated, that there is a defect in an EPA that is not readily apparent, or that the attorney is disentitled to act.

An attorney is not liable if he or she did not know the power of attorney has terminated, or that there is a defect in an EPA that is not readily apparent, if the attorney, even by exercising reasonable care, could not have known of and did not know of the relevant circumstances.

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