Creating Uniform Power of Attorney Legislation
Ten years have now passed since the introduction of the Uniform Power of Attorney Act by the American Uniform Law Commission. Since 2006, the Uniform Power of Attorney Act has been approved and recommended for enactment in all US states.
Much like our own Uniform Law Conference of Canada, the American Uniform Law Commission is tasked with enacting legislation that individual states are thereafter encouraged to adopt.
To date, many states have not yet adopted the Uniform Power of Attorney Act or other comparable legislation to deal with attorneyship and guardianship issues. So far this year, however, five states, including Utah and Washington, have introduced and/or enacted the uniform legislation. A surprising number of states, which include our neighbours in New York State and vacation hotspots such as Florida and California, where a number of Canadians own property and spend the winter months, have not implemented the Uniform Power of Attorney Act.
The Uniform Power of Attorney Act is subdivided into four articles:
- Article 1 defines the term “incapacity” to reflect American common law, outlines the formal requirements for Powers of Attorney, and provides, among other terms, that a Power of Attorney will be treated as if durable or continuing (i.e. the authority of an attorney will continue during a period of the grantor’s mental incapacity, rather than being limited to use while the grantor remains capable) and will come into effect immediately, unless the document states otherwise;
- Article 2 outlines the authorities of attorneys for property and the circumstances in which an attorney may or may not exercise a Power of Attorney to transfer or deplete assets that are otherwise the subject of bequests under the grantor’s Last Will and Testament;
- Article 3 contains Power of Attorney forms and related instructions for use by lawyers and laypeople alike;
- Article 4 includes miscellaneous provisions that clarify the role of the Act within the context of other legislation and Powers of Attorney that predate it.
In Ontario, the Substitute Decisions Act governs most matters involving Powers of Attorney. If older Canadians and/or those experiencing cognitive decline spend time in the United States, it is advisable to look into the relevant state’s requirements to ensure that their Powers of Attorney provide the authority required to assist in managing affairs in these other jurisdictions.
Thank you for reading.