New Brunswick seeks feedback on proposals for enduring powers of attorney legislation
June 28, 2018
BY Gurinder Cheema
The Legislative Services Branch (LSB) of the Office of the Attorney General (New Brunswick) is currently working on proposals for powers of attorney legislation. The LSB released Law Reform Notes #40 in December 2017 and Law Reform Notes #41 in May 2018. Both issues of the notes discuss the LSB’s proposals for powers of attorney legislation.
The LSB seeks feedback on its suggestions and proposals for reform. The deadline for providing feedback is July 15, 2018 and details are available at the end of this blog.
Law Reform Notes #40
The LSB plans to propose a new Act that deals with both powers of attorney for personal care and powers of attorney for property. The Act will focus on enduring powers of attorney (EPAs) and the Act will likely include provisions that address:
- execution requirements;
- eligibility requirements for attorneys;
- multiple attorneys;
- commencement of the attorney’s authority;
- duties, powers and limitations of the attorney;
- remuneration of the attorney;
- revocation of an EPA;
- termination of an attorney’s appointment;
- recognition of EPAs from other jurisdictions;
- the status of existing EPAs; and
- the relationship between EPAs and health care directives.
This issue of the notes also discusses protection of donors, a standard form EPA, financial institution practices and health care directives.
With respect to the protection of donors from financial abuse, the LSB says that some form of notice by the attorney would be a beneficial measure. This type of notice should not be mandatory for all attorneys and the donor should be afforded the choice of whether the attorney is required to give notice. The LSB mentions that the appointment of a monitor – a person entitled to demand an accounting from the attorney – is likely a sensible measure. The LSB notes if no monitor is appointed, family members should not be entitled to demand an accounting, like in other jurisdictions, but the donor should be able to choose. In addition, the LSB is exploring options related to the possibility of a reporting and investigation process when abuse of an EPA is suspected.
The LSB is considering whether an optional standard form EPA should be developed. The notes mention that the key benefit of a standard form EPA would be accessibility. A possible drawback is the higher likelihood of people creating an invalid EPA, or one that is the product of undue influence, because these people will not obtain legal advice.
The notes discuss concerns about certain practices of financial institutions. For example, in some cases, donors are apparently asked to use the financial institution’s own EPA template, which could have negative consequences for the donor. In addition, the LSB received comments from financial institutions and other third parties highlighting concerns they have with respect to their role in identifying and reporting abuse of EPAs. The LSB identifies a few ideas for how to address these concerns.
The notes also address potential ways to deal with the overlap between powers of attorney for personal care and health care directives under the Advance Health Care Directives Act (AHCDA). This overlap exists because “both an attorney for personal care and a proxy can make health care decisions, and because both a power of attorney for personal care and a health care directive can contain directions regarding health care.” One option is to incorporate the provisions of the AHCDA into the new powers of attorney Act.
Law Reform Notes #41
This issue of the notes mentions that the there is support for a new Act, for an optional standard form and for measures aimed at reducing financial abuse. The notes recognize that there is support for a system for reporting and investigating abuse, but the LSB concluded that such a system is beyond the scope of its project.
The LSB raises the following questions in the notes:
- What, if anything, should the new Act say about suspected abuse of a power of attorney? The LSB intends to propose that a person should be allowed to report suspected abuse to the monitor designated in the power of attorney or to any alternate attorney.
- Should the Act state that if financial abuse is suspected, a financial institution may refuse to disburse funds, or disburse a limited amount, to an attorney?
The notes address the overlap between powers of attorney for personal care and health directives under the AHCDA. According to feedback the LSB received, incorporating the provisions of the AHCDA into the new Act is the preferred option. The LSB is working with the Department of Health to see if this is a viable solution.
The LSB welcomes comments and suggestions on content from Law Reform Notes #40 and #41. The deadline for responses is July 15, 2018. Responses should be sent to [email protected] or the following address:
Legislative Services Branch, Office of the Attorney General Chancery Place, P.O. Box 6000, Fredericton, N.B., Canada E3B 5H1
In 2013, the CCEL participated in a National Meeting on Financial Abuse organized by the International Federation on Ageing and held in Toronto which discussed some of the ideas and issues raised in the LSB notes. As part of this event, the CCEL produced the Background Paper – Financial Abuse of Seniors: An Overview of Key Legal Issues and Concepts.
In August 2015, BCLI’s Executive Director attended the Uniform Law Conference of Canada annual meeting as a member of the BC delegation. At the meeting a proposed Uniform Power of Attorney Act addressing some of these issues was reviewed. The Uniform Enduring Powers of Attorney Act with commentaries is available on the ULCC web site.
In addition, other law reform commissions in Canada have released comprehensive reports on this topic. In August 2015, the Law Reform Commission of Nova Scotia released its final report, The Powers of Attorney Act. In March 2017, the Law Commission of Ontario released its final report, Legal Capacity, Decision-making and Guardianship.