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POWER OF ATTORNEY - Termination - On attorney’s death

Thursday, July 15, 2021 @ 11:56 AM  


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Appeal by Kirkpatrick from the dismissal of his application to act as attorney for his aunt. The appellant applied to be appointed attorney under the aunt’s enduring power of attorney after both named attorneys passed away. The aunt was incapacitated at the time. The judge concluded, on application of the common law, that the death of the named attorneys voided the enduring power of attorney. The judge concluded that because the death of both attorneys already voided the enduring power of attorney, the appellant could not then be a subsequent substitute in place of the named attorney.

HELD: Appeal allowed. Section 5(1)(c) of the Powers of Attorney Act specifically contemplated that a judge could for cause, on application substitute another person for the attorney. A plain reading of that section contemplated the appointment of a different attorney than the one named by the donor. The word “substitute” was not limited or restricted to requiring an attorney to act up to the moment of their substitution. The judge’s interpretation would have required the attorney himself to seek permission to secure a substitute attorney. The Act imposed no such requirement. The plain meaning of the words used in s. 5(1)(c) was that a judge could appoint a substitute for a dead attorney if the judge was persuaded it was appropriate. The unrestricted plain meaning of s. 5(1)(c) was consistent with the pragmatic statutory scheme and legislative objective.

Kirkpatrick (Re), [2021] N.S.J. No. 255, Nova Scotia Court of Appeal, C.A. Beaton, A.S. Derrick and J.E. Fichaud JJ.A., June 15, 2021. Digest No. TLD-July122021008