Power of attorney without enduring clause
At common law, a donor can appoint multiple attorneys to act jointly, concurrently or successively. Where a power of attorney document does not contain a clause that the powers continue after the mental incompetence of the donor, the district registrar will allow multiple attorneys to act jointly, concurrently or successively, provided that this is in accordance with the power of attorney document.
Power of attorney with an enduring clause
Joint attorneys
For those powers of attorney that continue after mental incompetence, The Powers of Attorney Act has created special rules governing the decision making for attorneys appointed jointly; The Act, provides that in those situations where the attorneys cannot come to a unanimous decision, the decision of a majority will be deemed to be the decision of all.
See section 18(1), The Powers of Attorney Act
The Act further provides that where the attorneys cannot form a simple majority, the first named attorney shall be entitled to make the decision.
See section 18(2), The Powers of Attorney Act
Where joint attorneys cannot come to a unanimous decision and the power of attorney provides that it continues after mental incompetence, the district registrar will accept execution by less than all of the attorneys. In such cases the registrar will require evidence that the decision was that of the majority (where available) or of the first named where a majority cannot be obtained.
Joint vs. Consecutive/Successive vs. Concurrent
Section 17(1) of The Powers of Attorney Act allows a donor in an enduring power of attorney to appoint any number of persons to act jointly or successively as their attorneys. This section does not contemplate the appointment of concurrent attorneys.
Section 17(2) of the Act provides that where multiple attorneys are appointed to act, and the document does not indicate whether they are to act jointly or successively, they are to act successively, in the order in which they are named.
Read together, sections 17(1) and 17(2) suggest that where a party has appointed multiple attorneys in an enduring power of attorney, they must be either joint or successive, and if they are anything else, they will be treated as successive.
This interpretation of section 17 makes sense when one considers the special circumstances in which an enduring power of attorney is intended to be used. Specifically, an enduring power of attorney will be relied upon to manage a person’s affairs after that person has become incompetent. In such cases, section 17 provides a safeguard against the possibility of multiple attorneys going off in separate and contradictory directions to the detriment of the donor. Control of multiply appointed attorneys is usually exercised by the donor; they can remove attorneys where they are not acting appropriately. When the donor is no longer available, there is no one to reign in attorneys that are not cooperating.
This is not the only instance where legislation has the effect of frustrating the express wording in a power of attorney. Absent the presence of Form 9 under The Homesteads Act, an attorney cannot execute consents or releases, even if specifically authorized. A spouse or common law partner can never execute consents or releases as attorney for their spouse or common law partner, even if specifically authorized to do so, even if the Form 9 is attached. An entire enduring power of attorney will be of no force and effect if it is not witnessed in accordance with section 11 of the Act.
The restrictive interpretation seems to be in keeping with the effect of section 18 of the Act. That section (discussed above) sets up special decision making rules for jointly appointed attorneys in enduring powers of attorney. Once again, these rules seemed aimed at creating a clear mechanism for determining who is capable of making the decision for a party who has become mentally incompetent. Like section 17, section 18 can also have the effect of overriding the apparently clear wishes of a donor. Specifically, even where a donor has set up a regime appearing to require unanimous decision making, the Act allows for a simple majority, or where that is not available, for the first named attorney to act on their own.
It is important to note that the enduring power of attorney does not exist at common law and is a creation of statue. Accordingly, the rules of the common law do not apply to these documents.