Manitoba Law Reform Commission seeking public comment on substitute powers of attorney
August 15, 2016
BY Kevin Zakreski
The Manitoba Law Reform Commission has just published its Consultation Report on Substitute Powers of Attorney under The Powers of Attorney Act (PDF). The report is asking the public to comment on a proposal to reform Manitoba’s Powers of Attorney Act.
Section 21 of Manitoba’s act deals with renunciation of a person’s appointment to act as an attorney. If an attorney appointed under an enduring power of attorney knows or ought reasonably to know that the donor of that power of attorney is mentally incompetent, then the attorney is under a statutory duty to act on behalf of the donor. In these circumstances, the attorney can’t renounce this duty to act, except with the leave of the court.
Other provinces don’t require a court application to approve an attorney’s renunciation. British Columbia, for example, allows an attorney to renounce the appointment on notice.
The Manitoba Law Reform Commission provisionally recommends that Manitoba move closer to British Columbia’s position:
The Powers of Attorney Act should be amended by replacing the wording of Section 21 to permit an attorney to resign, giving notice to the donor, or, if the donor is mentally competent, to any other attorney(s), including any substitute attorney(s), appointed by the power of attorney, and, if the donor is mentally incompetent, to the donor’s spouse or partner or, if the donor has no spouse or partner, to the donor’s most immediate family member(s) or close friend as defined by Section 25 of the British Columbia Power of Attorney Act. Where there is no one to whom the attorney may deliver the notice of resignation, notice should be made to the Public Guardian and Trustee.
Consultation on this provisional recommendation is open until Saturday, 1 October 2016. Instructions on submitting responses are available on the Manitoba commission’s website.
The Manitoba Law Reform Commission notes that this consultation report will be the first in a series of reports entitled “Creating Efficiencies in the Law,” which will seek to address discrete, straightforward issues identified by legal practitioners which, in the commission’s view, can be improved by relatively simple legislative amendments.