Estate Planning Council of Vancouver

Transcription

1 Estate Planning Council of Vancouver Changes to Enduring Powers of Attorney Hugh McLellan Role of the Public Guardian and Trustee Kathleen Cunningham October 25, 2011

2 BACKGROUND 4 Adult Guardianship Acts passed in 1993 (RA Act, PGT Act, AG Act, HCC&CFA Act) Proclaimed in part in 2000 Amendments and Regs since

3 BILL 29, ADULT GUARDIANSHIP AND PLANNING STATUTES AMENDMENT ACT, 2007 Amended by Misc. Statutes Amendment Acts: Bill 33, 2008; Bill 13, 2009; Bill 11, 2010; and Bill 7, Bill 29, as amended, proclaimed in part - effective Sept. 1, 2011 Also Regs amended and some new as of Sept. 1/11

4 HEALTH CARE (CONSENT) AND CARE FACILITY (ADMISSION) ACT New Part 2.1: new provision for Advance Directives

5 REPRESENTATION AGREEMENT ACT Section 9 repealed and new provisions Existing Sec. 9 RAs grandfathered New form and Certificates

6 POWER OF ATTORNEY ACT Old enduring clause repealed and extensive new provisions for enduring POAs Existing enduring POAs deemed under new Act Springing POA allowed, need to specify if active now Expressly allows alternate attorneys Capacity presumed and Statutory test for capacity

7 New witnessing requirements: Attorney must now sign before witnesses Two witnesses for adult and attorney required unless one is a lawyer or notary Specifies who may be witness be careful: an employee or agent of attorney may not act as a witness, except trust cos and practitioners

8 Duties set out in Act Codifies common law Unless doc specifies, must invest as per Trustee Act Not dispose of property gifted by Will unless necessary

9 making/receiving gifts & loans permitted if express or if can meet obligations, history of loan/gift and total of all annual gifts/loans lesser of 10% of income and $5,000

10 Record keeping specified: List assets and liabilities and values, accounts, invoices, bank statements, etc. show receipts and disbursements

11 May not make a Will May designate beneficiary if Court authorizes it or if replacing plan & no change in beneficiary or if designate estate

12 No delegation unless expressly allowed POA disposing of property in Will beneficiary receives equivalent amount from estate

13 Payment of Attorney: no compensation unless doc expressly allows and sets amount or rate, but may be reimbursed for expenses

14 Specifies when POA ends: attorney dies or incapable or bankrupt or convicted of proscribed offence or if adult victim or on end of marriage or marriage-like relationship

15 Resignation procedure by notice specified Suspension as POA document specifies Must give written notice to revoke or change

16 ROLE OF THE PGT Power of Attorney Act: (all new) Anyone can make report Reason to believe Incapable of making, changing, revoking EPOA Fraud, undue pressure, other form of abuse induced the making, changing, revocation Attorney is abusing or neglecting adult Attorney is incapable Attorney is not complying with duties

17 ROLE OF THE PGT Representation Agreement Act Similar provisions for reporting ( objection ) Both Acts require PGT to review List of possible outcomes

18 ROLE OF THE PGT Public Guardian and Trustee Act PGT may investigate or audit affairs, dealings and accounts of: Trustee if beneficiary is abused or neglected Adult s affairs if abused or neglected Attorney if reason to believe adult is incapable Representative Committee

19 FINANCIAL INVESTIGATIONS PGT criteria for investigation: Immediate risk of harm to assets Reason to believe adult is not capable of managing financial and legal affairs No other suitable person to manage affairs

20 FINANCIAL INVESTIGATION POWERS Right to information includes: Accounts and records from trustee or SDM Accounts and records from institutions Any reports or information about incapability Request for reports, information, explanation from trustee or SDM

21 INVESTIGATIONS & EMERGENCY POWERS If there is reason to believe affairs or assets need immediate protection: Instruct institutions to not permit withdrawals Halt sale of assets Redirect income to use for adult s health or safety

22 POSSIBLE OUTCOMES Informal solutions and supports put in place Representative/Attorney comply with duties Refer to Designated Agency to investigate other forms of abuse, neglect or self neglect Refer to community services Recommend PGT become committee of estate Assuming no other personal able, willing, suitable

23 CHALLENGES FOR THE PGT Adult may not be incapable Adult may not be willing to take steps to stop abuse must respect complex relationships Gathering information from third parties Adult s resources do not justify PGT involvement PGT authority limited to financial management and decision making

24 PROTECTIONS FOR 3 RD PARTIES PGT Act: Cannot disclose identity of referring party Protection from liability for breach of confidentiality when responding to PGT Power of Attorney Act: Protection from liability for report to PGT Adult Guardianship Act: Cannot disclose identity of reporting party Protections from liability for reporting Protections for employees for reporting

25 PGT AND HEALTH CARE DECISIONS Public Guardian and Trustee Act Investigate personal and health care decisions if SDM is not complying with duties Health Care (Consent) and Care Facility (Admission) Act Authorize temporary substitute decision maker Make health care decision as TSDM

26 PRACTICAL ISSUE #1 Should an attorney sign the EPOA immediately when document is created?

27 PRACTICAL ISSUE #2 What is fair compensation for an attorney and how is it achieved?

28 PRACTICAL ISSUE #3 Client comes to advisor and has an enduring power of attorney document made in Ontario. Client is appointed attorney for his mother. Client wants to use EPOA in BC. Can this be done? If so, what protection in place if it has been revoked?

29 PRACTICAL ISSUE #4 You work for a financial institution. Staff have alerted you that the attorney for an elderly client has been making large withdrawals in the thousands of dollars every week for 9 weeks. You suspect attorney is misusing her authority under EPOA. What can you do?

30 Questions?