Nova Scotia Law Reform Commission urges changes to Powers of Attorney Act

June 9, 2014 Hull & Hull LLP Elder Law, Power of Attorney 0 Comments

The Law Reform Commission of Nova Scotia recently released a discussion paper on Nova Scotia’s Powers of Attorney Act.  The paper urges changes to the legislation which would strike a more appropriate balance between two principles which sometimes compete with each other: the autonomy of the donor (referred to as a grantor in Ontario) and the need for safeguards to “help prevent abuse.”

On one hand, a minimally intrusive legislative scheme helps to ensure that bureaucratic oversight does not interfere with the donor’s intentions.  On the other hand, a legislative scheme without safeguards may fail to adequately protect those donors against abuse at the hands of their Attorneys.

The paper raises several different proposals for discussion but I found this proposal especially interesting:

We propose that the Government of Nova Scotia, in collaboration with relevant organizations institutions and professional bodies, should develop a program for the provision of accessible legal services specifically for seniors and for persons with disabilities. The program should cover estate planning including EPAs [referred to as a Power of Attorney or POA in Ontario] and personal directives, and legal services in the context of litigation involving financial abuse.

According to the Commission, a lack of access to legal resources makes one more likely to be a victim of EPA abuse.  It also limits “opportunities to seek effective remedy and redress.”  Furthermore, some persons may be unaware of the option to make an EPA in advance of incapacity, and, without effective estate planning advice, may have to have a guardian appointed by the court.

The Commission notes that access to legal services is particularly important in Nova Scotia “where there is no public body charged with civil investigation and enforcement in cases of EPA abuse.”

In Ontario, the Office of the Public Guardian and Trustee is charged with this very task; furthermore, two specialty law clinics, ARCH Disability Law Centre and the Advocacy Centre for the Elderly, already exist to provide the elderly and disabled with access to legal services.

According to the Law Commission of Ontario, these two clinics ensure access by older adults to “information about their rights and responsibilities under the law.”  This access “promotes the participation of and inclusion of older adults, as well as fostering independence and autonomy.”

This seems to me to be an excellent proposal because it affords the elderly with additional safeguards against abuse, without intruding on their autonomy.  It achieves the best of both worlds.

Persons with access to legal resources are better equipped to ensure that their intentions are realized should they become incapable.  Furthermore, affording the elderly with opportunities for meaningful remedy and redress in the face of abuse enhances their autonomy, rather than intruding upon it.

The Nova Scotia Law Commission is interested to hear your thoughts on their paper.  You may send your comments to info@lawreform.ns.ca until June 30, 2014.

Thank you for reading.

Ian Hull

 

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