Manitoba Law Reform Commission calls for streamlining of rules governing substitute attorneys
February 27, 2017
BY Kevin Zakreski
In its recently published report Creating Efficiencies in the Law: Substitute Powers of Attorney (PDF), the Manitoba Law Reform Commission has recommended that Manitoba’s Powers of Attorney Act be amended to streamline the process of allowing a successor attorney appointed under an enduring power of attorney to step in if the original attorney ceases to act.
Under the current provisions, the law “requires that once an attorney has assumed power under an enduring power of attorney the attorney can only resign with judicial approval, even where a substitute attorney has been named by the donor in contemplation of the possibility that the original attorney would no longer be willing and able to act.” After a brief review of the origins of this provision, the current state of the law in Manitoba, and the position elsewhere in Canada, the report comes to the conclusion that reform is necessary.
In the Commission’s view, this provision creates unnecessary cost and expense for people who are prudently engaged in modern estate planning. There is no procedural benefit to court intervention when an attorney wants to resign and a substitute attorney is already identified. As previously mentioned, the Act already provides that the authority of an attorney under an enduring power of attorney terminates without judicial approval if the attorney becomes bankrupt, mentally incompetent or dies. Accordingly, the Commission recommends the Act be amended to allow an attorney to renounce without judicial approval where a substitute attorney is named in the power of attorney in order to carry out the donor’s intentions.
The report sets out five recommendations designed to implement this conclusion.
This report is “part of a series of reports entitled Creating Efficiencies in the Law, which seek to address discrete, straightforward issues that, in the Commission’s view, can be improved with relatively simple legislative amendments.”