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Powers of Attorney Act

Powers of Attorney Act. Considering Reform Thoughts for Current Practice. Kelly L. Greenwood Barrister & Solicitor. Overview. Background Discussion About Reform: Scope and Capacity/Formalities Donor Appointments/Attorney Duties Monitoring/Accounting Varying/Terminating

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Powers of Attorney Act

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  1. Powers of Attorney Act Considering Reform Thoughts for Current Practice Kelly L. Greenwood Barrister & Solicitor

  2. Overview • Background • Discussion About Reform: • Scope and Capacity/Formalities • Donor Appointments/Attorney Duties • Monitoring/Accounting • Varying/Terminating • Public Education/Abuse • Thoughts on Current Practice

  3. Background • Common Law – Agency Law • 1970’s Reform Discussions • May 25, 1988 – Change Arrives in Nova Scotia • Use of Enduring Powers of Attorney

  4. Scope and Capacity • Presume Capacity, or not? • Define Capacity • Assess Capacity • Declare Contingency Trigger • Confidential Information

  5. Formalities • Writing, Date, Signature • Witnesses • Witness Statements • Independent Legal Advice • Attorney Acceptance

  6. Donor Appointments • Who Can Act? • Impact of Criminal Convictions • Undischarged Bankrupts • Paid Personal Care Workers • Security • Decision Making by Joint Attorneys • Scope of Authority • Compensation/Reimbursement

  7. Donor Rights • Continuing to Act • Revocation • Requiring an Accounting • Requiring Donor’s Interests be Served

  8. Attorney Duties • Duty of Loyalty • Follow Instructions • Avoid Conflicts • No Co-Mingling/Self Dealing • No Delegating • Account to Donor • Duty of Care

  9. Expanded Attorney Duties • Duty to Act • Facilitating Contact • Making Investments • Preserving Donor’s Will

  10. Monitoring and Accounting • Registration • Notice of Attorney Acting • Keep Records • Account – To Whom?

  11. Varying and Terminating • By Donor • By Court • Revocation • Irrevocability

  12. Public Education • Standard Forms • Public Legal Education • Best Practices • Mandatory Termination

  13. Thoughts on Current Practice • Trust is Crucial • Name Alternate(s) • Witness Statement of Capacity • Include Duty to Account • Identify Recipient(s) of Accounting • List Duties • List Examples of Powers

  14. Questions, Comments, Discussion • Think and Talk about the Issues • Send Comments to the Law Reform Commission • Email info@lawreform.ns.ca • Phone (902) 423-2633 • Write to: Law Reform Commission of Nova Scotia 2nd Floor, 1484 Carleton Street Halifax, Nova Scotia B3H 3B7 COMMENTS OPEN TO JUNE 30, 2014

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