There are certain powers that an attorney constituted by a properly drafted power of attorney cannot exercise without specific authorization. The following is a discussion of those powers.
Power to mortgage
Where a power of attorney document contains an enumerated list of the powers that the attorney can exercise, the attorney will only have the power to execute mortgages if there is a specific grant of that power.
See Andrews v. Sinclair [1923] 2 W.W.E. 166 [C.A.]
Transfers for less than fair market value/power to gift
Absent a specific provision in a power of attorney allowing for conveyances at less than fair market value, the district registrar will not accept such a conveyance. This applies to gifts as well as to any other conveyances for nominal or insufficient consideration.
Transfers to an attorney
Unless specifically authorized by the power of attorney, named attorneys may not use the power of attorney to transfer a donor’s land to themselves nor can they otherwise benefit from the exercise of their power (for example the execution of a discharge of mortgage on behalf of a donor where the affected lands are owned by the attorney).
See:
• Elford v. Elford (1922), 69 DLR 284 (SCC)
• Manitoba Metis Federation Inc. v. Canada (Attorney General) et al., 2010 MBCA 71
• Houston v. Houston, 2012 BCCA 300 at paragraph 54
Due to the trust created by the power of attorney, in those situations where a power of attorney names multiple attorneys, the district registrar will not accept a conveyance to any of the attorneys, even if they are not the party actually signing the conveyance. Furthermore, such a conveyance will not be accepted even under those circumstances where the intended transferee has renounced their right to be an attorney under the power of attorney document without leave of the Court.
Continuing to act after mental incompetence of donor
At common law powers of attorney are terminated by the mental incompetence of the donor.
See:
• Drew v. Nunn (1879), 4 Q.B.D. 661 (C.A.)
• Axler v. Axler, 1993 CarswellOnt 566, 50 E.T.R. 93
• Parnall v. British Columbia, 2004 BCCA 100, [2004] B.C.W.L.D. 371, 236 D.L.R. (4th) 433, 26 B.C.L.R. (4th) 45, 193 B.C.A.C. 309, 316 W.A.C. 309, 9 E.T.R. (3d) 117
Legislation in Manitoba allows powers of attorney to continue after mental incompetence, but only if there is a specific provision in the power of attorney which provides that it is to continue despite the mental incompetence of the donor.
See section 10(1), The Powers of Attorney Act
To be validly constituted these enduring powers of attorney must be witnessed in accordance with the provisions of the legislation. See Witnessing the power of attorney document.
Homesteads Act consents, releases, etc.
The power of attorney document must contain a specific provision allowing the attorney to execute releases and consents under The Homesteads Act.
See section 23(1), The Homesteads Act
In addition, for those powers to be effective, Form 9 under The Homesteads Act (Acknowledgement by Spouse or Common-law Partner for Power of Attorney) must be executed and attached to the power of attorney.
See section 23(3) and 23(4), The Homesteads Act
Form 9 can be found here: http://web2.gov.mb.ca/laws/regs/current/_pdf-regs.php?reg=121/93