Walking Away from a Power of Attorney Instrument

We are often asked how a power of attorney instrument (“POA”) can be altered or revoked by the adult who made it.  There are also certain instances which cause a POA to be revoked, without any notice.

1.         Limits and conditions can be set in the POA indicating when the appointment terminates (for example, if the attorney’s jurisdiction of residence changes to outside Canada).

2.         A change to a POA must be in writing and signed by the adult.  Written notice of a change or revocation must be given to each attorney (Power of Attorney Act, s. 28(2)).

3.         If the POA is filed, the filings should be revoked (for example, at the Land Title Office and any financial institution).

4.         Many individuals do not realize that certain activities cause the authority of an attorney to automatically end:

(a)          if the attorney is a spouse and the marriage or marriage-like relationship ends (unless the POA states otherwise);

(b)          the attorney becomes incapable or dies;

(c)          the attorney is bankrupt;

(d)          the attorney is a corporation which dissolves, winds up or ceases to carry on business; or

(e)          the attorney is convicted of certain offences or an offence in which the adult was a victim.

Attorneys named in a POA should also be aware of the formal procedure that must be followed to resign (s.25):

1.            the attorney must give written notice of revocation to the adult and other attorneys; and

2.            if the adult has lost mental capacity, the attorney must give notice to a spouse, near relative or close friend.

 If you have any questions about POAs or personal planning generally, please contact one of our Wealth Preservation + Estate Litigation professionals.

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