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Thursday, February 18, 2010

Can an attorney under power of attorney be forced to resign?

If you are acting under a valid Enduring Power of Attorney for someone else, can you be forced out of that authority by the person who is named as alternate (i.e. the person who would take over if you weren't doing it anymore)?

The rules that govern people acting under Enduring Powers of Attorney are not well known. I've seen several cases over the years where family members basically gang up on the person acting as attorney and "persuade" him or her to resign in writing so that someone else can take over. Not knowing the rules, everyone thinks they have done something allowable (nasty maybe, but legal). They are wrong.

My friend David Koski of the Estate House shared with me a case he was recently involved in which clarifies some of these issues. The case is reported as Mikulin v. Mikulin, 2010 ABQB 41. It gives a good overview of what is allowed under the Powers of Attorney Act of Alberta.

It is possible for someone to force the attorney out of his or her role, but only by applying to the court to terminate the Enduring Power of Attorney. They can't simply get you to sign something..

If the court does order that the Enduring Power of Attorney is terminated, the court cannot appoint anyone else to be the attorney. Even where there is an alternate attorney named in the document, the court can't transfer authority to him or her because by then the whole document has been terminated.

Note that if the document is terminated, there will be nobody representing the incapacitated person and someone will have to apply for trusteeship. Usually the court will direct that the person who asked for the Enduring Power of Attorney to be terminated should apply for this.

Think about the mess that could be created if the people with the unlawful resignation go around to banks and other places changing what has been done by the lawful Attorney. How do you unwind what the unlawful person has done without spending a lot of time and money?

If you are acting under an Enduring Power of Attorney and are having problems, you really should talk to an estate planning lawyer to understand what your options are. Also, if you feel that someone acting for your parent or other person is misusing their power under an Enduring Power of Attorney, please don't act until you've spoken with a lawyer about how to do things legally.

1 comment:

  1. This is a great site, thank you for doing this. I have a question that relates to this post.Very elderly parents have appointed two siblings as Power of Attorney. The document stipulates: "acting on my behalf, the signature of xxxxx or jjjjjj shall be sufficient." One attorney has been managing finances for two years alone (the other indicated no willingness to participate as was not consulted before being appointed). Now after the death of one parent this second attorney indicates no knowledge of having being POA and now wants to be involved in a controlling negative way. The lawyer involved says 'Work it out. This is a domestic matter.' Any suggestions. Thanks


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