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Revised Statutes of Newfoundland 1990


CHAPTER E-11

AN ACT RESPECTING ENDURING POWERS OF ATTORNEY

Analysis

1. Short title

2. Interpretation

3. Enduring power of attorney

4. Waiver

5. Powers of attorney exercisable while donor without capacity

6. Best interests of donor

7. Liability of attorney

8. Effect of termination

9. Substitution of attorney

10. Accountability of attorney

11. Powers of donor during legal capacity

12. Letters of guardianship

13. The Mentally Disabled Persons' Estates Act

14. The Trustee Act


Short title

1. This Act may be cited as the Enduring Powers of Attorney Act.

1990 c15 s1

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Interpretation

2. (1) In this Act

(a) "attorney" means the donee of an enduring power of attorney and where a power of attorney is given to more than 1 person, it means those persons;

(b) "court" means the Trial Division;

(c) "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; and

(d) "spouse" means a person of the opposite sex to whom a person is married or with whom a person has cohabited for more than a year.

(2) This Act 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.

1990 c15 s2

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Enduring power of attorney

3. (1) A power of attorney, signed by the donor and witnessed by a person who is not the person named in the enduring power of attorney as the attorney or the spouse of that person, which contains a provision expressly or impliedly stating that it may be exercised during the legal incapacity of the donor, is an enduring power of attorney.

(2) A person shall be 19 years of age or older in order to be named as an attorney in an enduring power of attorney.

(3) An attorney shall not appoint another person to perform the attorney's functions or to exercise his or her powers as an attorney.

1990 c15 s3

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Waiver

4. This Act applies to all enduring powers of attorney notwithstanding an agreement or a statement in the enduring power of attorney to the contrary.

1990 c15 s4

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Powers of attorney exercisable while donor without capacity

5. A provision in a power of attorney expressly stating that it may be exercised during a subsequent legal incapacity of the donor is valid and effectual, subject to those conditions and restrictions that are contained in it and are not inconsistent with this Act.

1990 c15 s5

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Best interests of donor

6. (1) An attorney shall exercise his or her powers in the manner that protects the best interests of the donor, and where the attorney fails to do so, the attorney shall be liable to compensate the donor for loss occasioned by the attorney's failure.

(2) An attorney shall be considered to be a trustee of the property of the donor.

(3) Notwithstanding subsection (1), where an attorney proves to the satisfaction of the court that he or she has acted honestly, reasonably and in good faith, the court may relieve the attorney from personal liability either wholly or partially.

1990 c15 s6

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Liability of attorney

7. Where an enduring power of attorney is terminated or revoked or becomes invalid and the attorney

(a) acts in good faith;

(b) did not know and could not reasonably be expected to know of a termination or revocation or invalidity of the enduring power of attorney; and

(c) acts in keeping with the terms of the enduring power of attorney

for the purpose of determining the liability of the attorney he or she shall be considered to have had the authority to act.

1990 c15 s7

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Effect of termination

8. (1) Where an enduring power of attorney is terminated or revoked or becomes invalid and a person who did not know and could not reasonably be expected to know of the termination, revocation or invalidity deals with the attorney the transaction shall, in favour of that person, be considered to be valid.

(2) Notwithstanding subsection (1), where the donor

(a) has expressly terminated the authority of his or her attorney; and

(b) given notice of the termination to the attorney,

the donor's liability to a person for the subsequent acts of the attorney shall be determined without reference to this Act.

(3) Where

(a) the authority of an attorney to act on behalf of his or her donor is terminated;

(b) the attorney purporting to act for his or her donor enters into a transaction with a 3rd person;

(c) the rights of a subsequent person are dependent on the validity of the transaction entered into by the attorney with the 3rd person; and

(d) the subsequent person, at the material time, did not know and could not reasonably be expected to know of the termination of the authority of the attorney,

for the purpose of determining the rights and obligations of the donor in relation to the subsequent person, the 3rd person shall be considered not to have known of the termination.

1990 c15 s8

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Substitution of attorney

9. (1) Where a donor of an enduring power of attorney becomes legally incapacitated, a person having an interest in the estate of the donor, or another person permitted by the court, may apply to the court for an order substituting another person for the attorney named in the enduring power of attorney.

(2) The registrar of the court may apply to the court for an order substituting another person for the attorney named in the enduring power of attorney where it appears to him or her to be in the best interests of the donor or the donor's estate.

(3) The attorney may apply to the court for an order substituting another person as attorney on giving notice to all persons having an interest in the estate of the donor.

1990 c15 s9

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Accountability of attorney

10. (1) A person with an interest in the estate of the donor, or another person permitted by the court, may, where the donor is legally incapacitated, apply to the court for an order requiring the attorney to submit his or her accounts for a transaction involving the estate of the donor.

(2) Where an order is made under subsection (1), the attorney shall file his or her accounts in the registry of the court and the proceedings and practice upon that filing shall be the same as for the filing of an executor's or administrator's account under the Judicature Act.

(3) For the purpose of subsection (1), the registrar of the court shall be considered to be a person with an interest in the estate of the donor.

1990 c15 s10

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Powers of donor during legal capacity

11. (1) A donor may revoke or terminate an enduring power of attorney at any time while the donor has legal capacity.

(2) A donor may change the attorney named in the enduring power of attorney while the donor has legal capacity.

1990 c15 s11

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Letters of guardianship

12. A person named as an attorney under an enduring power of attorney that has not been validly witnessed but otherwise complies with section 3 may apply to the court, under section 3 of the Mentally Disabled Persons' Estates Act, for an order appointing the attorney as guardian of the estate of the donor.

1990 c15 s12

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The Mentally Disabled Persons' Estates Act

13. (1) Where a donor of an enduring power of attorney wishes to exclude the application of section 20 of the Mentally Disabled Persons' Estates Act he or she shall so state in the enduring power of attorney.

(2) Where the donor has failed to state that section 20 of the Mentally Disabled Persons' Estates Act does not apply, the attorney or the registrar of the court may apply to the court for a ruling as to who shall manage the estate of the donor and the court shall determine on the basis of administrative convenience who shall have the management of the estate.

1990 c15 s13

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The Trustee Act

14. Section 3 of the Trustee Act does not apply to an enduring power of attorney unless the donor of the power of attorney states that it is to apply.

1990 c15 s14

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