First Session, 47th

General Assembly

61 Elizabeth II,

BILL 3

AN ACT TO AMEND THE ENDURING

POWERS OF ATTORNEY ACT

Received

and Read the First Time ...................................................................

Second

Reading ..............................................................................................

Committee ......................................................................................................

Third

Reading .................................................................................................

Royal

Assent ...................................................................................................

HONOURABLE FELIX

COLLINS

Minister of Justice

and Attorney General

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

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.

A BILL

AN ACT TO AMEND THE ENDURING POWERS OF

ATTORNEY ACT

Analysis

S.2 R&S

Interpretation

2. S.14 R&S

Trustee Act

Ss.15 to 21Added

15. Designation of legally

authorized

representatives

16. Designation agreement

17. Operation of

designation agreement

18. Revocation or

termination

19. Death or incapacity of

designate

20. Monitoring of RDSP

21. Application to court

SNL1990 cP-46.1 Amdt.

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

RSNL1990 cE-11

as amended

Section 2 of the Enduring Powers of Attorney Act is repealed and the following

substituted:

Interpretation

(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 ( Canada );

(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

section 146.4 of the Income Tax Act

( Canada );

(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

designators legal incapacity.

Section 14 of the Act is repealed and the

following substituted:

Trustee Act

Section

3 of the Trustee Act does not apply

(

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

(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.

Designation agreement

(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

(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 Canada

Disability Savings Act ( Canada ) and the Income Tax Act ( Canada );

and

(

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 designators 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

(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

(1) Where

a designate resigns, dies or is unable to act, notice shall be given in writing

by that designate or the designates 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

(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

(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;

Commencement

5. This Act comes into force on a day to be

proclaimed by the Lieutenant-Governor in Council.

William E.

Parsons, Queen's Printer