When a person loses capacity and the ability to make their own decisions while they are still alive, what happens? Who can assist that person in dealing with day to day and financial matters? Here in Saskatchewan, the answers to these questions can be found in The Powers of Attorney Act, 2002 (the “Act”). Typically, if a person has done the proper estate planning while they still have the capacity to make their own decisions, they should have appointed an attorney under the Act.
Under the Act, the attorney can be given a tremendous amount of power to deal with your property, financial affairs, living situations and day to day decisions. As with any power, there is always the potential for abuse by the attorney. As such, the grantor of the power of attorney must ensure that they have safe guarded their property and appointed someone that they trust. However, as in life, things do not always go as planned and abuse can still occur.
As such, the Government of Saskatchewan has approved changes to the Act to assist with the prevention of potential abuse by an attorney. The recent changes under The Powers of Attorney Amendment Act, 2014 include:
- Requiring an attorney to provide a final accounting when he or she stops acting;
- Placing restrictions on what attorneys can charge for managing an estate;
- Allowing attorneys to make gifts from an estate if the power of attorney document specifically permits it, or if the attorney has reason to believe the property owner would have done so;
- Placing limitations on the total value of gifts an attorney can make out of the estate in one year; and
- Giving the Public Guardian and Trustee the power to investigate an attorney’s management of an estate.
These changes go into effect January 1, 2015.
What do these changes mean for the grantor and the attorney?
For the grantor, this provides some additional level of protection and comfort knowing that the attorney has additional restrictions and responsibilities when acting. A grantor will still want to ensure they appoint someone they trust but can now rest assured that there are laws in place to protect their assets so that they can maintain their way of life until their passing. Grantors will also need to ensure that if they wish to provide gifts to other people during their lifetimes that are above the regulated amounts that they specifically state so on their power of attorney.
For the attorney, this means some additional restrictions on what they can charge for fees and what they can gift out to third parties. It also means additional work in providing accounting once they have stopped acting. This can be an additional burden on the attorney that they must ensure they are prepared to take on.
Therefore, when preparing a power of attorney, one must consider these new changes both as the grantor and the attorney.
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