First Session, 47th General Assembly
61 Elizabeth II, 2012
AN ACT TO AMEND THE ENDURING POWERS OF ATTORNEY ACT
Received and Read the First Time...................................................................
HONOURABLE FELIX COLLINS
Minister of Justice and Attorney General
Ordered to be printed by the Honourable House of Assembly
This Bill would amend the Enduring Powers of Attorney Act to facilitate access to Federal Disability Savings Plans by adults who may lack legal capacity. The Bill would
· allow adults who may not otherwise have legal capacity to do so to designate persons as their legally authorized representatives, and those persons may act as holders of the adult's RDSP;
· provide that a designation agreement is valid notwithstanding the current or subsequent legal incapacity of the designator;
· require persons who have been named as designates to act in the best interests of the designator in the administration and operation of an RDSP, and further provide that those persons are trustees of the designator;
· provide that a designation agreement is effective when filed with the public trustee, and require designates to report annually to the designator and the public trustee respecting the operations and accounts of the RDSP;
· establish the process by which a person, including the public trustee, may apply to the court for a determination on matters concerning the administration and operation of the RDSP; and
· provide that the court may make an order, as appropriate, respecting the administration and operation of the RDSP.
AN ACT TO AMEND THE ENDURING POWERS OF ATTORNEY ACT
2. S.14 R&S
Ss.15 to 21Added
4. SNL1990 cP-46.1 Amdt.
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
1. Section 2 of the Enduring Powers of Attorney Act is repealed and the following substituted:
2. (1) In this Act
(a) "adult" means a person who has reached the age of majority;
(b) "attorney" means the donee of an enduring power of attorney and where a power of attorney is given to more than one person, it means those persons;
(c) "beneficiary" means a beneficiary as
referred to in section 146.4 of the
Income Tax Act (
(d) "cohabiting partner" means either of 2 persons who have cohabited in a conjugal relationship outside of marriage for at least one year;
(e) "court" means the Trial Division;
(f) "designation agreement" means an agreement which designates 2 adults as the legally authorized representatives of a designator who may act as holders of the designator's RDSP;
(g) "designate" means a person who has been named in a designation agreement;
(h) "designator" means an adult who qualifies for and is the beneficiary of an RDSP;
(i) "holder" means a holder as defined
in section 146.4 of the Income Tax Act
(j) "legal incapacity" means mental disability of a nature
(i) such that were a person to engage in an action he or she would be unable to understand its nature and effect, and
(ii) that would, but for this Act, invalidate or terminate a power of attorney, RDSP or another legal agreement;
(k) "minister" means the minister appointed under the Executive Council Act to administer this Act;
(l) "RDSP" means a Registered Disability Savings Plan established and administered under the Canada Disability Savings Act (Canada) and the Income Tax Act (Canada); and
(m) "spouse" means either of 2 persons who are married to each other.
(2) This Act, except sections 15 to 21, applies only to a power of attorney that authorizes the management of the estate of a donor.
(3) A power of attorney that is intended to be exercised in the event of the donor's subsequent legal incapacity or that is intended to continue notwithstanding the donor's subsequent legal incapacity is not terminated by reason only of subsequent legal incapacity that would, but for this Act, terminate the power.
(4) A designation agreement is not invalid by reason only that
(a) a designator lacks legal capacity at the time the agreement is executed; or
(b) a designator lacks legal capacity subsequent to the execution of the agreement
where that designation agreement is expressed or intended to be executed or to continue notwithstanding the designator’s legal incapacity.
2. Section 14 of the Act is repealed and the following substituted:
14. Section 3 of the Trustee Act does not apply to
(a) a designation agreement unless the designates under that agreement have been authorized in it to receive payments from an RDSP; or
(b) an enduring power of attorney unless the donor of the power of attorney states that it is to apply.
3. The Act is amended by adding immediately after section 14 the following:
Designation of legally authorized representatives
15. (1) Where an adult wishes to establish an RDSP but that adult may lack the legal capacity to do so, the adult may execute a designation agreement to designate persons as his or her legally authorized representatives, and those persons may act as holders of the adult's RDSP.
(2) In deciding whether an adult who may lack legal capacity to enter into an RDSP has the capacity to enter into a designation agreement, all relevant factors shall be considered, including
(a) whether the adult communicates, orally or otherwise, a desire to enter into the RDSP and the designation agreement;
(b) whether the adult demonstrates preferences and can express feelings of approval or disapproval;
(c) whether the adult is aware that entering into a designation agreement or changing or revoking it means that the designates may make, or stop making, decisions or choices that affect the adult as they relate to the RDSP; and
(d) whether the adult has a relationship with the persons who are intended to be designates that is characterized by trust.
(3) Where an adult cannot satisfy subsection (2), that adult is not entitled to appoint designates under a designation agreement, but that adult or the parents or guardians of that adult may apply to court for an order appointing the public trustee as the designate of the adult under a designation agreement, and court may issue that order where it is satisfied that it is in the best interests of the adult to do so.
(4) Execution of a designation agreement is not alone presumptive proof that an adult is a mentally disabled person as referred to in the Mentally Disabled Persons' Estates Act.
(5) A designation agreement executed under the authority of this Act shall relate only to the operation of the RDSP and matters relating to it, and shall not otherwise affect the capacity of the adult for whose benefit it has been executed or that adult's ability to deal with his or her assets or that adult's capacity for making decisions in other matters, including health care.
16. (1) A designator who satisfies the requirements of section 15 may enter into a designation agreement by designating 2 adults who shall be that designator's legally authorized representatives and who shall be the holders of the designator's RDSP.
(2) Designates may be relatives of the designator.
(3) Notwithstanding subsection (1), a designator may designate the public trustee as the sole designate under a designation agreement.
(4) A designation agreement shall be in the form prescribed by the minister and shall be signed by the designator and
(a) both designates; or
(b) the public trustee where he or she is the sole designate under the agreement.
(5) A designation agreement is effective when it is filed with the public trustee, and that filing may be made by facsimile transmission or other electronic means.
(6) A designate shall exercise his or her powers and duties under the agreement in the manner that protects the best interests of the person for whose benefit the agreement has been made, and section 6, with the necessary changes, applies to a designate under this section.
(7) A designate shall not appoint another person to perform his or her functions or exercise his or her duties under a designation agreement.
(8) A designator who has executed a designation agreement may amend that agreement at any time, and that amendment shall be executed in accordance with the requirements for executing a designation agreement under this Act.
(9) A designate is not, solely because of the designation, the representative of a designator or the designator's estate for the purpose of receiving payments out of the RDSP.
(10) Notwithstanding subsection (9), a designator may, in a designation agreement, authorize designates under that agreement, including the public trustee where the public trustee is designated as sole designate, to receive payments from the RDSP.
(11) Where designates are authorized to receive payments from the RDSP under a designation agreement, all payments from the RDSP shall be paid jointly to the designates, or where the public trustee is the sole designate, to the public trustee.
(12) Designates authorized to receive payments under a designation agreement shall only
(a) apply the funds received to the purposes authorized under subsection 9(1) of the Mentally Disabled Persons Estates Act; or
(b) invest the funds received in the securities in which trustees are authorized to invest under the authority of the Trustee Act.
Operation of designation agreement
17. (1) Persons designated under a designation agreement shall only have authority to act when acting together and their decisions shall be unanimous.
(2) Subsection (1) does not apply where the public trustee is the sole designate.
(3) Designates under a designation agreement shall
(a) act in the manner referred to in subsection (1);
(b) have the powers and responsibilities of a
holder of an RDSP and operate the RDSP in accordance with the
(c) act in the manner and with the care, diligence and skill of a reasonably prudent person in comparable circumstances.
(4) Designates may retain the assistance of qualified persons in doing anything required for the administration and operation of the RDSP.
(5) Designates are not entitled to be remunerated but may be reimbursed from the designator’s assets for
(a) expenses properly incurred in retaining a person under subsection (4); and
(b) extraordinary expenses properly incurred in performing the duties or exercising the powers given to them under this Act.
(6) Designates shall have no power or authority with respect to any other rights or assets of the designator, except those associated with the RDSP.
Revocation or termination
18. (1) A designation agreement may be revoked by a designator by
(a) executing a subsequent agreement; or
(b) executing a revocation agreement in the form prescribed by the minister.
(2) A designation agreement is terminated upon
(a) the appointment of a guardian for the designator under the Mentally Disabled Persons Estates Act;
(b) an order of the court; or
(c) the death of the designator.
(3) Where a designation agreement has been amended, revoked, terminated or a designate has been changed, notice shall be given to the public trustee and the bank or financial institution which holds the RDSP.
(4) Where a designator dies, the powers of the designates as holders of the RDSP shall pass to the executor or administrator of the designator's estate.
Death or incapacity of designate
19. (1) Where a designate resigns, dies or is unable to act, notice shall be given in writing by that designate or the designate’s representative to
(a) the designator;
(b) the other designate under the designation agreement;
(c) the public trustee; and
(d) the bank or financial institution which holds the RDSP.
(2) Where a designate dies, resigns or is unable to act, the designation of the other designate is suspended and the public trustee shall act as the sole designate under the RDSP and shall administer and operate the RDSP for the time period referred to in subsection (3).
(3) The public trustee shall act as sole designate under the authority of this section
(a) until another person is designated by the designator in the manner required by this Act to replace the designate who died, resigned or was unable to act; or
(b) for a period of 12 months
and where another designate has not been appointed by the designator after the expiration of the 12 month period, the public trustee shall apply to court for an order under section 21 to confirm the public trustee as sole designate or to appoint an alternate designate.
(4) Where a new designate is designated or appointed
(a) the suspension of the other designate shall cease and the designates may administer and operate the RDSP in accordance with this Act; and
(b) the public trustee shall cease to be a designate as required by this section.
Monitoring of RDSP
20. (1) The designates under a designation agreement shall annually submit to the public trustee a statement of the accounts and operations of the RDSP which the designates administer.
(2) In addition to the report required under subsection (1), where designates have been authorized to receive payments from an RDSP in a designation agreement, the designates shall submit a report to the public trustee summarizing all payments from the RDSP and the application of the funds from those payments.
(3) A copy of the reports required under this section shall be given to the designator and the bank or financial institution which holds the RDSP.
(4) Where the public trustee receives a report under subsection (1) or (2), the public trustee may make those inquiries and require further documentation as necessary to monitor the operations of designates under an RDSP, and a person shall give the public trustee reasonable help to enable him or her to carry out his or her duties and functions under this Act and shall provide the information that he or she may reasonably require.
Application to court
21. (1) A person, including the public trustee, may make an application to court for confirmation, variation or termination of a designation agreement, or for another order as appropriate where that person reasonably believes
(a) fraud, undue pressure or some other form of abuse or neglect is being or was used to induce an adult to make, amend or revoke a designation agreement;
(b) the making, use, amendment or revocation of a designation agreement is clearly inconsistent with the current wishes, values, beliefs or best interests of the adult who made, amended or revoked the agreement;
(c) there is an error in a designation agreement or an error was made in executing, witnessing or filing the agreement;
(d) anything improper has occurred in the making, use, amendment or revocation of a designation agreement;
(e) a designate is
(i) abusing or neglecting the adult for whom the designate is acting,
(ii) failing to follow the instructions in the designation agreement,
(iii) incapable of acting as a designate, or
(iv) otherwise failing to comply with the designation agreement or the duties of a designate;
(f) anything improper has occurred in the use of funds paid to designates from an RDSP, or where the use of those funds is contrary to this Act or to the best interests of the designator; or
(g) any criteria specified in the designation agreement as grounds for objection have been met.
(2) Where an application has been made under subsection (1), the court may
(a) confirm, vary or terminate the designation agreement;
(b) appoint alternate persons as designates, as the court considers appropriate;
(c) where a designate has resigned, died or is unable to act, appoint a second designate for the purpose of the operation and administration of the designation agreement;
(d) appoint the public trustee as the sole designate under a designation agreement;
(e) order the repayment of the funds improperly used by designates to the designator; or
(f) make those other orders that the court considers appropriate in the circumstances for the operation and administration of the RDSP.
(3) An order made under paragraph (2)(e) shall be enforceable as a judgement against the designates by the designator, or by the public trustee on behalf of the designator.
SNL2009 cP-46.1 Amdt.
4. Subsection 4(1) of the Public Trustee Act, 2009 is amended by adding immediately after paragraph (d) the following:
(d.1) act as a designate in a designation agreement under the authority of the Enduring Powers of Attorney Act;
(d.2) monitor the operations of designates in the administration of an RDSP under the authority of the Enduring Powers of Attorney Act;
5. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.
©William E. Parsons, Queen's Printer