Power of Attorney
Ted Koskie: Why you need a Power of AttorneyMay 25, 2017
By Sheryl Smolkin
Today I am interviewing Saskatoon lawyer Ted Koskie about everything you need to know about Powers of Attorney in Saskatchewan. In addition to his law degree, Ted has a B.Sc. in Mathematics and Computational Science and previously worked as a systems analyst. He has been practicing law in the province since 1981.
Thanks for joining me today, Ted.
My pleasure, Sheryl.
Q: Now, to start off: what is a power of attorney, exactly?
A: A power of attorney is a document that allows an individual to give someone else the authority to act on his or her behalf. You name another person in that document to do certain things for you. It can be somewhat unrestricted, or it can be rather restricted.
Q: Are there different types of powers of attorney?
A: In Saskatchewan you can appoint an attorney to manage your property. That’s called an individual and property attorney. The other is a personal attorney, who is an individual that can be given authority to make decisions about personal affairs. This could include things about where one might live, or what kind of help one might need, perhaps around their home. The thing to keep in mind is that a personal attorney is not entitled to make healthcare decisions. That is something that is done under a separate piece of legislation.
Q: And what is that document called?
That document is called a Healthcare Directive.
Q: Many people routinely complete power of attorney forms when they make a will. Why is it important for an individual to grant power of attorney at that particular time?
A: Well, it’s usually a time when people are planning for unforeseen circumstances. A will plans for death, and ultimately, we’re planning for something that we simply cannot gauge in terms of time. The important thing, really, is that at the time of drafting a will, usually a determination is made that an individual has capacity to make a will. If the person has the capacity to make a will, they will also have the capacity to make a power of attorney. The difficulty is that if we allow that to wait, this unforeseen, or unplanned, event of incapacity, or otherwise, may come at a time when we just simply aren’t able to make a power of attorney.
Q: Should a power of attorney be made with a lawyer, or can someone just download a form and fill it out?
A: Well, people certainly can download forms, and those are becoming more and more popular on websites. I certainly do not recommend it. I think many times what we see is that people think that the plain, ordinary English is something that is going to be something they can employ to carry out their wishes but that is not always the case. I often use the example of someone hiring an electrician to wire their garage. Yes, we probably could do it on our own, but if one thinks about it, we certainly would be far better served if we hired a qualified person and legal fees for powers of attorney are usually quite inexpensive.
Q: So, what happens if a person becomes incapable of handling his or her own affairs, and has not granted a power of attorney?
A: Well, they really are left with only a couple of alternatives. One is to make an application to the court for a decision maker to be appointed, and the other alternative would be to make an application to the court under what is called the Adult Guardianship and Co-decision-making Act. Another option would be to look at the potential of engaging the public guardian and trustee, and indeed, there is a mechanism as well within the Public Guardian and Trustee Act for that person to also become a decision-maker.
Q: What qualifications does a power of attorney have to have?
A: Well, the power of attorney, ultimately, must be an adult which in Saskatchewan is 18 years of age or older. The person must have capacity, and not have certain disqualifications. The person cannot be, for example, an undischarged bankrupt or have been convicted of a prescribed criminal offense within the prior 10 years. Some examples of prescribed offenses are assault, acts of violence, intimidation, theft, fraud, and breach of trust.
If the person has been convicted within the previous 10 years he/she either must have been pardoned, or must disclose that conviction to the person making the power of attorney, and ultimately, in writing, that grantor must consent.
As well, there’s one other possible ground for disqualification. He/she cannot be providing personal care or healthcare services for remuneration to the person granting a power of attorney.
Q: Can a power of attorney make or modify a will?
A: No, it cannot.
Q: Do financial institutions, and other groups, for example, have to accept the power of attorney at face-value, and let the power of attorney manage the granter’s affairs?
A: Yes. My view is that, yes, they must. There are times when there might be certain things that have been either prescribed or not prescribed within a power of attorney that perhaps a financial institution might question. But on whole, yes, they must.
Often, people, perhaps, think about powers of attorney much like they do wills, where financial institutions would require people to go to the court to get what are called Letters Probate which is a, in a sense, a confirmation of the last will and testament, and the appointment of an executor. There is no similar such requirement for powers of attorney.
Q: What other types of documentation might they typically request, though, before acting on a power of attorney?
A: Well, my experience, generally, has been, firstly, identity. And they may well look for any proof of the grantor’s incapacity. They may also want to be assured that the individual is still alive, because a power of attorney is only valid during the lifetime of an individual. At death, the will takes over.
Q: So, can the power of attorney, for example, change the names on bank account?
A: Well, yes, they can. But there must be actual specific provision made within the power of attorney that allows that to occur. But generally speaking, powers of attorney give a very, very broad power. In fact, it’s unrestricted, unless it actually is restricted.
Q: Does the Saskatchewan power of attorney have to be registered anywhere?
A: No, it does not.
Q: And how can it be revoked?
A: Well, it can be revoked in a variety of ways. Sometimes, the power of attorney will actually have a date specified in it, as to when it actually terminates. The grantor –if indeed, the grantor has capacity — can do a written revocation of the power of attorney. It also ceases either on the POA lacking capacity, dying, resigning, or ceasing to meet the qualifications that the act sets out.
It also ceases if a decision-maker is made under the Adult Guardianship and Co-decision-making Act, or if the Public Guardian is appointed to act. Or, indeed, if there there’s an order that the person is presumed dead.
But another case where the POA will cease to be valid is if the grantor and the attorney are spouses and they cease to co-habit as spouses because they intend to end their relationship.
Q: That’s really interesting.
A: Yes. It’s a protective mechanism that I think is there in place to say, all right, perhaps that is an occasion when one should reassess those types of decisions.
Q: So, is a power of attorney made in Saskatchewan valid in the rest of the country, or outside the country?
A: My view is that in most instances, it will be. However, from time to time, I see that there are idiosyncrasies in various jurisdictions that might have a specific provision that perhaps our power of attorney has not provided for. In Saskatchewan, provision is specifically made within the legislation to say that an extra provincial power of attorney is valid, if indeed it is valid in the place where it has been executed. I think, in most instances, that would be the case with other jurisdictions.
But, there may be some unique provisions. For example, prior to our Power of Attorney Act being enacted, powers of attorney needed to specifically reference land — the actual description of land — in order to be effective. So there might be this type of provision in other jurisdictions.
Q: Is the power of attorney entitled to any form of compensation?
A: Yes. There are really three ways to be compensated. One is if the fee is actually set out in the power of attorney. That is something that I often suggest to people that they do, because then they know what is being charged. And ultimately, if the individual is taking on the task, they’re deemed to have accepted that amount.
The second way is if the courts make an order setting a fee. And there’s a third, and that is the fee is set out in the regulations which actually provide for a monthly fee. So, if you are actually appointed as a property attorney, you’re entitled to charge 2.5% of monies received, and 2.5% of payments made every month.
If you’re a personal attorney, you’re entitled to charge $15 an hour. Basically, the fee comes out of the grantor’s estate. And when there is a fee in place, the attorney needs to provide an annual accounting of their activities as power of attorney.
Q: If someone’s exercising a power of attorney, but other family members or friends think it’s fraudulent, how can they contest it?
A: There really are a couple of options. One is to bring an application to the court. The court always has a supervisory responsibility. The second is to lodge a complaint with the Public Guardian. The Public Guardian can make appropriate inquiries, and indeed, take appropriate measures as well. The third mechanism, really, is the police. A power of attorney is an individual in a position of trust, which is a very high standard of care, and the police will not hesitate to review allegations of fraud.
Q: So, what did I forget? Is there anything else that you think that our readers and our listeners might need to know about powers of attorney that I haven’t asked you about?
A: I think, all too often, that individuals think only of making a will, and do not think about the need for a power of attorney. What they must realize is that a power of attorney allows for decisions to be made about the individual while they are alive. In my view, it is a very important document, because it deals with the person, the human being. A will deals with stuff. Yes, it is important to settle your affairs, but in my view, far more important to take care of the individual who is alive.
Q: That’s great, Ted. Thanks very much for talking to me today.
A: My pleasure.
T.J. Ted Koskie