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Powers of Attorney Execution and Revocation

Post about POWERS OF ATTORNEY issues

Powers of Attorney Execution and Revocation

Postby Pinskylaw.ca » 17 Dec 2016, 17:51

While a will could be revoked by tearing it up, burning it, and otherwise destroying it, a power of attorney can only be revoked in the same way it was executed. Execution of a valid power of attorney (whether for property management or personal care management) requires two witnesses, who are none of the following - the attorney; the spouse or partner of the attorney; the spouse or partner of the donor; a child of the donor; or a person under the age of 18. The same exclusions apply for powers of attorney for property and for personal care. Revocation must also be in writing, and it must be executed in the same way as the power of attorney, i.e. with two witnesses. The capacity to revoke a power of attorney is determined in the same way as the capacity to make one. Therefore, if a person has capacity to make a power of attorney, he or she has capacity to revoke one.

Making a new power of attorney automatically terminates an existing one. Therefore, if it is desirable to have multiple powers of attorney that are existing in force at the same time, the documents must specify that they do not revoke certain other powers of attorney. There may be times when it is appropriate for the donor to arrange for multiple powers of attorney, all of which can exist at the same time. The opportunities for such arrangements may be limited, since it would be unwise to have several individuals, all with separate powers of attorney, able to do the same tasks. However, it is possible to anticipate times when it is appropriate to name one attorney who has the limited role of accessing one bank account, while another is appointed as a general attorney who can deal with all other assets. if such an arrangement is desirable and appropriate under the particular circumstances, it is important to ensure that each power of attorney document anticipates that others will exist co-independently to it. This must be specified in the document, and the document must state that it does not revoke other existing powers of attorney. Without such a limitation, each new power of attorney signed automatically revokes all other previous powers of attorney.

The issue of general powers of attorney and limited powers can come up frequently in the context of bank accounts at specific financial institutions. It is still sometimes difficult for the holder of a general power of attorney to ensure that he is given access to accounts with various financial institutions, since often different institutions will have different policies regarding the documentation that they require in order to activate a power of attorney and allow the attorney access to the account or accounts. Particularly where there are multiple financial institutions holding assets, the attorney who must start to us the power of attorney due to incapacity of the donor will need to obtain several notarial copies of the original power of attorney to deliver to each institution and usually be prepared for some delay in being allowed access to assets while the institution satisfies itself as to the propriety of the document. Particularly when the power of attorney was prepared using forms in the use before the Substitute Decisions Act, 1992, came into effect (and there are some such documents still in existence which have not been updated) the attorney needs to be prepared for delays in being able to use the power to assist the donor.
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