Effective September 1, 2011, several changes were made to the Power of Attorney Act relating to Enduring Power of Attorney instruments (“EPOA”). Some of the changes to be aware of are as follows:
1. EPOAs made prior to the new legislation are grandfathered and continue to be valid. Nevertheless, the adult may wish to make changes to an old EPOA given some of the legislative changes.
2. EPOAs must now include specific instructions if the attorney is to be allowed to conduct certain activities, such as:
a. invest in a manner not permitted by the Trustee Act (for example, investing in shares of a private company);
b. make certain loans or charitable gifts; and
c. claim compensation, etc.
3. EPOAs must now be signed by the attorney on the EPOA itself before it can be acted upon.
4. Prior to revoking an EPOA, the adult must give written notice to each attorney.
5. Those named as an attorney should be aware of the new duties imposed on them, including the following:
a. they must keep accounting records;
b. they must act in accordance with the adult’s current wishes, known beliefs and values, and any directions the adult sets out in the EPOA; and
c. they cannot dispose of assets which are distributed as testamentary gifts in a will, unless doing so is necessary to comply with an adult’s wishes.
6. A financial Representation Agreement (made pursuant to section 9 of the Representation Agreement Act) made prior to September 1, 2011 is deemed to be an EPOA as of September 1, and the representative is deemed to be an attorney. Therefore, the duties and responsibilities that apply to attorneys will also apply to these representatives.