Joint Attorneys: The Wilson Estate Case and Legal Insights

When it comes to managing the affairs of a loved one, power of attorney is a crucial tool that can provide a designated individual the authority to make decisions on behalf of another. However, the legal nuances surrounding power of attorney can lead to complications, especially when certain life events, like the death of an attorney, occur. The case of Wilson Estate (Re) 2008 NSSC 418 sheds light on some of these issues, particularly the application of the Powers of Attorney Act and what happens when one of the joint attorneys passes away.

Note this article provides legal information, not legal advice. Reading this article should not be construed as obtaining legal advice from Ross Estate Law.

The Scenario: Power of Attorney and Joint Attorneys

In this case, a mother granted a power of attorney to her son and daughter, naming them as joint attorneys. A power of attorney allows the appointed individuals to make decisions regarding the mother's financial and personal affairs if she becomes incapacitated. The issue in this case arose when the son passed away before the mother, leaving the daughter as the sole surviving attorney.

The daughter applied to the court for permission to have her brother’s wife substituted as the second joint attorney. This would ensure that the mother would still have two people authorized to act on her behalf, even after the son’s death.

Legal Question: Can the Daughter Act Alone?

The key question here was whether the daughter, as the surviving attorney, could act on her own after the death of her brother. The power of attorney document did not specify whether it was granted as joint tenancy or whether there was a right of survivorship in place, which would have determined the outcome. Common law suggests that a power of attorney is terminated upon the death of one of the attorneys, raising concerns about whether the daughter could continue acting alone.

In this particular case, the court needed to decide if the daughter could continue to exercise the authority granted by the power of attorney, or whether an alternative solution was needed. The daughter’s application proposed that her brother’s wife be substituted as the other joint attorney.

The Court's Ruling: Substitution of Attorney

The court, after considering the facts, ruled that the brother’s wife should be substituted as the joint attorney. This decision was influenced by the understanding that the mother likely did not anticipate her son predeceasing her. The court referred to section 5(1) of the Powers of Attorney Act, which allows for the substitution of an attorney if the donor (in this case, the mother) becomes legally incapacitated. The judge agreed that there was cause for substitution due to the son's death.

While common law suggests that a power of attorney terminates upon the death of an attorney, the court found that a broader interpretation of the law was necessary. It concluded that the death of an attorney could be seen as "cause" under section 5(e) of the Act, which empowers the court to grant "such relief as the court considers appropriate." In this case, the appropriate relief was the substitution of the brother's wife as the surviving joint attorney.

Conclusion

The Wilson Estate case serves as an important reminder of the complexities surrounding power of attorney agreements, especially when one of the appointed attorneys dies. The court's decision to substitute the brother's wife as attorney provides clarity on how the Powers of Attorney Act can be applied in these situations. It also points to a need for legislative reform to address these issues proactively, preventing future legal complications.

Power of attorney is a powerful tool, but as demonstrated by this case, it’s essential to ensure that the terms are clear and that the legal framework accounts for unexpected events such as the death of an attorney. As always, when dealing with estate planning or powers of attorney, it’s advisable to seek professional legal guidance to ensure that all contingencies are appropriately addressed.

Please note that the information provided in this blog post is for general informational purposes only and is not intended as legal advice. Reading this post does not create an attorney-client relationship, and the information shared here should not be relied upon as a substitute for professional legal counsel. If you require personalized legal advice regarding estate planning or any related matters, we encourage you to schedule a consultation with Ross Estate Law to discuss your unique circumstances.

Estate Planning Meeting

Book Now