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The Powers of Attorney and Mental Health Amendment Act

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If you need an official copy, contact Statutory Publications.

S.M. 1996, c. 62

THE POWERS OF ATTORNEY AND MENTAL HEALTH AMENDMENT ACT


 

(Assented to November 19, 1996)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

INTERPRETATION AND APPLICATION

Definitions

1          In this Act,

"attorney" means a person authorized to act for a donor under a power of attorney; (« mandataire »)

"court" means the Court of Queen's Bench of Manitoba; (« tribunal »)

"declaration" means a declaration provided for in subsection 6(2); (« déclaration »)

"donor" means an individual who gives a power of attorney; (« mandant »)

"enduring power of attorney" means a power of attorney provided for under subsection 10(1); (« procuration durable »)

"estate" means the estate of a donor, or as much of the estate of a donor as is subject to the power of attorney; (« patrimoine »)

"mental incompetence" means the inability of a person to manage his or her affairs by reason of mental infirmity arising from age or a disease, addiction or other cause; (« inhabilité mentale »)

"nearest relative" means, with respect to a donor,

(a) the adult person who is related to the donor, mentally competent and first listed in the following series:

(i) spouse,

(ii) child,

(iii) grandchild,

(iv) great-grandchild,

(v) parent,

(vi) sibling,

(vii) niece or nephew, or

(b) where no person qualifies under clause (a), the Public Trustee; (« plus proche parent »)

"Public Trustee" means the Public Trustee appointed under The Public Trustee Act; (« curateur public »)

"spouse", with respect to a donor or attorney, includes a person who is publicly represented by the donor or attorney as his or her spouse; (« conjoint »)

"springing power of attorney" means a power of attorney provided for in subsection 6(1). (« procuration subordonnée à une condition suspensive »)

Act applies despite waiver

2(1)       Subject to subsection (2), this Act applies to a power of attorney executed before or after this Act comes into force, despite any agreement or waiver to the contrary.

Application of Act to existing enduring power

2(2)       Sections 11 (persons who may witness donor's signature) and 16 (individuals eligible to be an attorney) do not apply to an enduring power of attorney executed before this Act comes into force.

POWERS OF ATTORNEY GENERALLY

Application to after-acquired property

3          Unless a power of attorney provides otherwise, the same rights and powers that are conferred upon an attorney in respect of property owned by the donor at the time the donor executes the power of attorney apply to property acquired by the donor after that time.

Acts of attorney after authority terminates

4(1)       Where the authority of an attorney under a power of attorney terminates, an act by the attorney in favour of a person who does not know of the termination is valid and binding in favour of the person and any person claiming under the person.

Attorney's liability for act after termination

4(2)       Where the authority of an attorney under a power of attorney terminates, the attorney is not liable to the donor or the estate of the donor for acting under the power of attorney if the attorney did not know, and with the exercise of reasonable care could not have known, of the termination before acting.

Definitions

5(1)       In this section,

"property" includes a thing in action and an interest in real or personal property; (« biens »)

"purchaser" means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee and any other person who for valuable consideration acquires an interest in property, or a lien or charge upon property. (« acquéreur »)

Irrevocable power of attorney for value

5(2)       Where a power of attorney is given for valuable consideration and is expressed in the document creating the power to be irrevocable, then, in respect of a purchaser,

(a) the donor may not terminate the power without the agreement of the attorney, and the power is not terminated by the death, disability or bankruptcy of the donor; and

(b) the attorney and the purchaser are not affected by any act done by the donor to terminate the power of attorney without the agreement of the attorney, or by the death, disability or bankruptcy of the donor.

SPRINGING POWERS OF ATTORNEY

Power in force at future time

6(1)       A donor may provide in the power of attorney that it comes into force at a specified future date or on the occurrence of a specified contingency.

Donor may appoint declarant

6(2)       The donor may in the power of attorney name one or more persons from whom the attorney may request a written declaration that the date or contingency has occurred.

Attorney may be declarant

6(3)       The donor may in the power of attorney name the attorney as the declarant or one of the declarants.

Doctors may declare mental incompetence

6(4)       Where a power of attorney provides that it comes into force on the mental incompetence of the donor, two duly qualified medical practitioners may act as the declarant if the donor does not name a declarant in the power of attorney or if the named declarant is unable or unwilling to provide a declaration.

Release of confidential information

6(5)      Despite any statutory or other restriction relating to the disclosure of information, if a power of attorney provides that it comes into force on the mental incompetence of the donor, information respecting the donor's health may be disclosed to the extent necessary for a declarant, a duly qualified medical practitioner or the court to determine whether the specified contingency has occurred.

Court may determine if power in force

7(1)       Upon application, a court may determine whether the date or contingency specified in a springing power of attorney has occurred

(a) if the donor did not name a declarant or the named declarant is unable or unwilling to provide a declaration; or

(b) in any other circumstances that the court considers appropriate.

Who may apply

7(2)       An application may be made by the attorney, the Public Trustee, a declarant or, in the discretion of the court, an interested person.

Notice of application

7(3)       An applicant under subsection (1) shall give notice of the application to

(a) the donor, unless the court orders otherwise;

(b) the attorney;

(c) any declarant named in the power of attorney;

(d) the Public Trustee; and

(e) any other person, as the court may order.

Effect of declaration

8          Where a third party relies in good faith on a declaration as evidence of the authority of an attorney, the declaration is conclusive proof that the specified date or contingency has occurred.

Liability of attorney acting in good faith

9          Where an attorney appointed under a springing power of attorney mistakenly but reasonably believes in good faith that the date or contingency specified in the power of attorney has or has not occurred, the attorney is not for that reason alone liable for acting or failing to act under the power of attorney.

ENDURING POWERS OF ATTORNEY

Requirements for enduring power

10(1)      The authority given by a donor to an attorney is not terminated by the mental incompetence of the donor after the execution of the power of attorney if the power of attorney

(a) is in writing;

(b) is signed by the donor, or the donor acknowledges his or her signature, in the presence of a witness;

(c) is signed by the witness in the presence of the donor; and

(d) provides that it is to continue despite the mental incompetence of the donor.

If donor cannot read or write

10(2)      Despite clause (1)(b), where a donor is incapable of reading or signing an enduring power of attorney, an individual other than the attorney or the attorney's spouse may sign the power of attorney on the donor's behalf in the presence and at the direction of the donor, in which case

(a) the donor shall acknowledge the signature in the presence of an individual who is qualified under section 11 to be a witness; and

(b) the witness shall sign the enduring power of attorney in the presence of the donor.

Capacity of donor when power executed

10(3)      An enduring power of attorney is void if at the time of its execution the donor is mentally incapable of understanding the nature and effect of the document.

Witnesses

11(1)      Subject to subsection (2), a witness to the execution of an enduring power of attorney must be

(a) an individual registered, or qualified to be registered, under section 3 of  The Marriage Act to solemnize marriages;

(b) a judge of a superior court of the province;

(c) a justice of the peace, magistrate or provincial judge;

(d) a duly qualified medical practitioner;

(e) a notary public appointed for the province;

(f) a lawyer entitled to practice in the province;

(g) a member of the Royal Canadian Mounted Police; or

(h) a member of a municipal police force in the province who exercises the powers of a peace officer.

Attorney and spouse may not witness

11(2)      The attorney appointed under the enduring power of attorney and his or her spouse may not act as a witness to the donor's signature.

Power may be filed with Public Trustee

12         A donor or attorney may file a copy of the enduring power of attorney with the Public Trustee.

Termination of authority under enduring power

13         Subject to section 5(2) (irrevocable power of attorney for value), the authority of an attorney under an enduring power of attorney terminates if

(a) a substitute decision maker is appointed for the donor under subsection 88(1) (substitute decision maker for property) of The Vulnerable Persons Living with a Mental Disability Act, and the appointment specifies that the powers of the substitute decision maker relate to the donor's estate;

(b) the custody, management and administration of the estate of the donor is taken over by the Public Trustee or other committee by order of the court under The Mental Health Act;

(c) the donor becomes bankrupt, unless the enduring power of attorney provides otherwise;

(d) the attorney becomes bankrupt or mentally incompetent or dies;

(e) the donor dies;

(f) subject to section 21 (renunciation of appointment as attorney), the attorney renounces the appointment and gives notice of the renunciation to the donor; or

(g)  the court terminates the power of attorney.

Suspension on appointment under Vulnerable Persons Act

14(1)     The operation of an enduring power of attorney is suspended when an emergency substitute decision maker is appointed for the donor under subsection 120(3) of The Vulnerable Persons Living with a Mental Disability Act, if the appointment specifies that the powers of the substitute decision maker relate to the donor's estate.

Term of suspension

14(2)     The enduring power of attorney remains suspended until the term of the appointment of the emergency substitute decision maker expires.

Attorney acting in good faith

15        An action taken by an attorney under an enduring power of attorney after its suspension or termination is as valid as it would be if the suspension or termination had not occurred if, at the time the action was taken, the attorney reasonably believed that the power of attorney was in effect.

Who is eligible to be an attorney

16         An individual is eligible to be an attorney under an enduring power of attorney if, at the time the donor signs the document, the individual is an adult and mentally competent and is not an undischarged bankrupt.

Donor may appoint any number of attorneys

17(1)      A donor may appoint any number of persons to act jointly or successively as the attorney.

When more than one attorney

17(2)     Where a donor appoints two or more attorneys without indicating in the enduring power of attorney whether they are to act jointly or successively, the attorneys shall act successively, in the order in which they are named in the document.

Decisions by majority of joint attorneys

18(1)      Subject to subsection (3) and the provisions of the enduring power of attorney, where two or more attorneys are appointed to act jointly,

(a)  a decision of the majority is deemed to be a decision of all; and

(b) if one or more of the attorneys die, renounce the appointment, become bankrupt or mentally incompetent, or are unwilling or, after reasonable inquiries by another attorney, not available to make a decision, the remainder of the attorneys may make the decision and the decision of the majority of the remainder is deemed to be the decision of all.

Decision of joint attorneys where no majority

18(2)     Unless otherwise provided in the enduring power of attorney, where two or more attorneys appointed to act jointly disagree about the making of a decision and are unable to make a majority decision, the attorney first named in the document may make the decision.

Objection by person appointed as joint attorney

18(3)      Where a decision is made by a majority under subsection (1) or by an attorney under subsection (2), an attorney who is under a duty to act under subsection 19(1) is not liable for the consequences of the decision if the attorney

(a) does not at the time of the decision vote for or consent to the decision; and

(b) provides a written objection to the decision to each of the other joint attorneys as soon as is reasonably possible after becoming aware of the decision.

Duty of attorney to act for donor

19(1)      An attorney under an enduring power of attorney who knows or ought reasonably to know that the donor is mentally incompetent is under a duty to act on behalf of the donor during the mental incompetence if

(a) the attorney has at any time acted under the power of attorney or otherwise indicated acceptance of the appointment as attorney; and

(b) the power of attorney has not been terminated.

Standard of care if attorney not compensated

19(2)      An attorney who does not receive compensation for acting as an attorney shall exercise the judgment and care that a person of prudence, discretion and intelligence would exercise in the conduct of his or her own affairs.

Standard of care if attorney compensated

19(3)      An attorney who receives compensation for acting as an attorney shall exercise the judgment and care that a person of prudence, discretion and intelligence in the business of managing the property of others is required to exercise.

Liability of attorney who fails to act

20         An attorney who fails to act as required by section 19 is liable to the donor for any loss occasioned by the failure.

Renunciation of appointment as attorney

21         An attorney may not renounce the appointment as attorney while subject to the duty to act under subsection 19(1) except with the leave of the court.

Duty of attorney to provide accounting

22(1)      During any period in which an attorney has a duty under subsection 19(1) to act, the attorney shall provide an accounting in respect of the estate

(a) upon demand by any person named as a recipient of an accounting by the donor in the enduring power of attorney; or

(b) where the donor does not name a recipient in the enduring power of attorney or the named recipient is the attorney or the spouse of the attorney or is deceased or mentally incompetent, annually to the nearest relative of the donor.

Attorney and spouse are not "nearest relative"

22(2)      An attorney or the spouse of an attorney who is the nearest relative of the donor is deemed for the purpose of clause (1)(b) not to be the nearest relative.

Person receiving accounting has no duty

22(3)      No person who receives an accounting under subsection (1) has any duty or liability in respect of the accounting.

Attorney may satisfy support obligation

23         An attorney may, subject to the provisions of the enduring power of attorney, exercise the power to dispose of the donor's estate in order to satisfy a legal obligation of the donor to maintain and support another person, which may include the attorney.

Jurisdiction of the court

24(1)      Upon an application made in respect of an enduring power of attorney, the court may, having regard to the power of attorney and the donor's intentions, make any order the court considers appropriate, which may include the following:

(a) an order providing advice or directions on any matter respecting the management of the donor's estate;

(b) a declaration that the donor is mentally incompetent;

(c) a declaration that a power of attorney is invalid or terminated;

(d) an order removing the attorney appointed under the power of attorney;

(e) an order requiring the attorney to provide the court with an accounting;

(f) subject to the provisions of the enduring power of attorney, an order varying the powers of the attorney;

(g) subject to the provisions of the enduring power of attorney, an order appointing a person as an attorney in place of the attorney appointed under the enduring power of attorney.

Who may apply and when

24(2)      An application under subsection (1) may be made by an attorney, the Public Trustee, the nearest relative of the donor, a recipient of an accounting under section 22 or, with the approval of the court, an interested person, at any time after the execution of the enduring power of attorney.

Notice

24(3)      The applicant shall give notice of the application to

(a) the donor, unless the court orders otherwise;

(b) the attorney;

(c) the Public Trustee; and

(d) any other person, as the court may order.

Recognition of foreign enduring power

25         A power of attorney executed in a place outside the province is valid as an enduring power of attorney in the province if

(a) it is valid according to the law of that place; and

(b) it provides that it is to continue despite the mental incompetence of the donor after the execution of the document.

THE MENTAL HEALTH ACT

C.C.S.M. c. M110 amended

26(1)      The Mental Health Act is amended by this section.

26(2)      Section 1 is amended by adding the following definition in alphabetical order:

"enduring power of attorney" has the same meaning as in The Powers of Attorney Act; (« procuration durable »)

26(3)      The following is added after subsection 26.11(2):

Medical officer to provide information

26.11(2.1)The medical officer shall include with each certificate sent under clause (2)(b)

(a) information respecting the effect of the certificate on the estate of a person, including any part of a person's estate that is the subject of an enduring power of attorney; and

(b) a request that information about any enduring power of attorney given by the person who is the subject of the certificate be provided to the Public Trustee.

26(4)      Clause 26.11(3)(a) is repealed and the following is substituted:

(a) the court makes an order under subsection (4) or subsection 26.15(10), or the Public Trustee gives notice under clause 26.15(6)(b) (enduring power of attorney);

26(5)      Subsection 26.12(1) of the French version is amended

(a) in clause (a), by striking out "une ordonnance" and substituting "un ordre"; and

(b) in clauses (b) and (c), by striking out "l'ordonnance" and substituting "l'ordre".

26(6)      Clause 26.12(2)(a) is repealed and the following is substituted:

(a) until otherwise ordered by the court under subsection (3) or subsection 26.15(10), or the Public Trustee gives notice under clause 26.15(6)(a) (enduring power of attorney);

26(7)      The following is added after section 26.14:

Definitions

26.15(1)  In this section,

"certificate" means a certificate completed under subsection 26.11(1); (« certificat »)

"order" means an order of supervision made under clause 26.12(1)(a). (« ordre »)

Enquiries re enduring power of attorney

26.15(2)  Upon receiving a certificate or order, the Public Trustee shall make reasonable enquiries to determine whether an enduring power of attorney has been given by the person who is the subject of a certificate or order and, if such a power exists, whether it is valid.

Suspension of power of attorney

26.15(3)  The operation of an enduring power of attorney given by the person is suspended from the time the certificate is completed or the order is made until the Public Trustee gives notice under clause (6)(b).

Attorney acting in good faith

26.15(4)  An action taken by an attorney under the enduring power of attorney after a certificate is completed or an order is made is as valid as it would have been if the certificate had not been completed or the order not made if, at the time the action was taken, the attorney reasonably believed that the power of attorney was in effect.

Duties of the Public Trustee

26.15(5)  When the Public Trustee determines that a valid enduring power of attorney exists, the Public Trustee shall

(a) give notice of the content of this section to the person, the person's nearest relative, and the person appointed as attorney under the power; and

(b) determine whether, in the opinion of the Public Trustee, the best interests of the person would be better served by the Public Trustee acting as committee under the certificate or order, or by the attorney acting under the power.

Public Trustee to give notice of result of investigation

26.15(6)  Upon making a determination under clause (5)(b), the Public Trustee shall give notice to the persons referred to in clause (5)(a) and the medical officer who completed the certificate or the director who made the order that the Public Trustee

(a) will continue to act as committee under the authority of the certificate or order; or

(b) will not continue to act as committee, and the person appointed as attorney under the enduring power of attorney may act under the power as of the day the notice is served on the person or such later date as is specified in the notice or agreed upon by the person and the Public Trustee.

Effect of notice under clause (6)(a)

26.15(7)  The enduring power of attorney is terminated when the Public Trustee gives notice under clause (6)(a).

Effect of notice under clause (6)(b)

26.15(8)  When the Public Trustee gives notice under clause (6)(b), the director shall immediately cancel the order.

Immunity

26.15(9)  No action or proceeding may be commenced against the Public Trustee in respect of a determination made under clause (5)(b).

Application to court

26.15(10) A person who is given notice under clause (6)(a) or any other person with leave of the court may apply to the court within 30 days after receiving the notice, or such further period as the court may allow, for an order cancelling the termination of the enduring power of attorney, and confirming the appointment of the attorney or, subject to the power, appointing another person as the attorney under the power.

REPEAL, CITATION AND COMING INTO FORCE

Repeal

27         The Powers of Attorney Act, R.S.M. 1987, c. P97, is repealed.

C.C.S.M. reference

28         This Act may be cited as The Powers of Attorney Act and referred to as chapter P97 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

29         This Act comes into force on a day fixed by proclamation.