In another blog article we reviewed the unhappy fact situation set out in the Selkirk case
The court examined the law on whether or not individuals using a Power of Attorney can enter into a Trust Agreement on behalf of the donor of the Power of Attorney. There were three competing decisions across Canada. However, the theme of those three decisions is exactly in accordance with our firm’s own practice. An attorney can only do those things that are in strict accordance with the terms of an existing Will and as such are not creating a testamentary document, (usually a will). In plain English, you cannot use a Power of Attorney to write a person’s Will. This is both prohibited under the common law i.e. judge-made law and under the provisions of The Substitute Decisions Act.
But you can create a Trust such as the ones we commonly do under the Full Monty using the Power of Attorney if it is completely in accordance with the Terms of an existing will. You can facilitate the terms of the will, but you cannot change its terms or effect.
