Earlier this year, I blogged about the revocation of powers of attorney. Today, I want to address the other ways by which a power of attorney may be terminated.
A continuing power of attorney is terminated when the following events occur:
- The attorney dies, becomes incapable, or resigns, unless the document provides for the appointment of a substitute attorney.
- A guardian of property is appointed by the court.
- A new continuing power of attorney is executed, unless it provides for the existence of multiple continuing powers of attorney.
- The death of the grantor.
- The grantor revokes the power of attorney.
When an attorney commences to act under the continuing power of attorney, their resignation is not effective until a copy of the resignation is given to the grantor and any other attorneys under the power of attorney, including substitutes. Section 11(1) of the Substitute Decisions Act (the “Act”) provides that when a grantor has become incapable and there is no substitute attorney who is willing or able to act, the attorney’s notice of resignation must also be given to the grantor’s spouse, partner and relatives who are known to the attorney and reside in Ontario. Section 11(1.1) of the Act provides that notice does not need to be given to a spouse when they are living separate and apart from the grantor. This is also the case for relatives that are related only by marriage. Section 11(2) of the Act also imposes an obligation on a resigning attorney to make “reasonable efforts” to give notice of the resignation to persons with whom the attorney previously dealt on behalf of the grantor and with whom further dealings are anticipated.
It is important for lawyers to advise their clients that the execution of a new continuing power of attorney will cause the revocation of an existing power of attorney given to for a specified purpose. Lawyers should also advise their clients that an unrestricted power of attorney can be revoked inadvertently by signing a subsequent continuing power of attorney with a bank or other financial institution when that power of attorney does not provide for multiple continuing powers of attorney.
Thanks for reading.