A Power of Attorney is a legal document where an individual (the donor) appoints someone else (the attorney) to look after the donor’s financial affairs in the event the donor loses capacity to handle his or her own affairs. A Power of Attorney is a critical component of an individual’s estate plan and in many ways, is as important as having a Will. Given that the powers being given to the attorney are so broad and effectively give the attorney unfettered access to the donor’s finances, it is critically important that the individual or individuals being appointed as the attorney are someone that the donor trusts without question.
One question that often comes up when dealing with the powers of an attorney under a Power of Attorney is whether the attorney, once acting, can change a beneficiary designation on the donor’s investment accounts or life insurance policies. Courts throughout Canada have consistently stated an attorney’s authority does not extend to being able to change beneficiary designations on behalf of the donor. A change of beneficiary designation on life insurance or other investment instruments is seen as a testamentary act, similar to making a Will and therefore, an attorney appointed under a Power of Attorney does not have the ability to change beneficiaries previously named by the donor when he or she was mentally capable.
An attorney is a fiduciary and must carry out their duties diligently, honestly, in good faith, and in the best interests of the incapable donor. It is hard to imagine a scenario where changing a beneficiary on behalf of the incapable donor would be in his or her best interest.
If you have any questions about the scope of authority of an Attorney under a Power of Attorney or are in need to obtaining a Power of Attorney for yourself, please contact me at [email protected] and I would be happy to discuss your situation with you.
