Canada: Reform Urged for Enduring Power of Attorney laws

Uniform Improvements Recommended for Enduring Powers of Attorney in the Four Western Provinces

Many people rely on enduring powers of attorney (EPAs) to authorize an attorney to handle their financial affairs while they are mentally incapable. In its report, Enduring Powers of Attorney: Areas for Reform, Western Canada Law Reform Agencies (WCLRA) recommends improvements in the EPA statutes of all four western provinces to address common issues. These recommendations are designed to make it easier to use EPAs in cross-border situations, to promote wider understanding and knowledge of attorney duties, and to provide some additional safeguards against attorney misuse of an EPA.

To make it easier to use EPAs in cross-border situations, WCLRA proposes:

·      standard formal requirements for making EPAs;

·      uniform legislative changes to promote recognition of EPAs made
in other provinces;

·      a standard form EPA, for those who wish to use it.

WCLRA recommends that each province adopt and publicize a uniform statutory list of attorney duties. If everyone knows how an attorney is supposed to act, there is less chance that an attorney will misuse the power of an EPA through ignorance.

To safeguard against misuse, it is important to bring an attorney’s conduct out into the open where others can notice if something seems wrong. Proposed safeguards in this area include:

·      an attorney must give a formal notice to certain people when
the attorney starts to act under the EPA;

·      persons who suspect misuse can contact a public official, who
would have the discretion to investigate;

·      the public official would have the power to freeze accounts,
obtain information from financial institutions, examine records and
obtain warrants for search and seizure;

·      financial institutions who suspect misuse would also be
empowered to temporarily freeze accounts while reporting their
suspicions.

WCLRA consists of the British Columbia Law Institute, the Alberta Law Reform Institute, the Law Reform Commission of Saskatchewan and the Manitoba Law Reform Commission.

Copies of this Report may be obtained at no charge by contacting The British Columbia Law Institute or by downloading it from the Internet
at: www.law.ualberta.ca/alri.