Yukon bill proposes to delete requirement that lawyer witness enduring power of attorney

Proposed legislation in Yukon will update the Enduring Power of Attorney Act for the first time since its introduction 25 years ago.

“A modernized enduring power of attorney system is an important part of estate planning as it provides continuity, stability and financial security for individuals who become incapable of managing their affairs,” stated Tracy-Anne McPhee, Yukon’s justice minister, in the news release from the Yukon government.

McPhee tabled Bill no. 17 or the Enduring Powers of Attorney and Related Amendments Act (2020) on Oct. 7, which will also amend the Public Guardian and Trustee Act. The proposed amendments include additional and clarified requirements for a valid enduring power of attorney and the removal of the requirement that a lawyer witness the enduring power of attorney.

The proposed changes state that an attorney should exercise their duty in a specific manner, should furnish financial records under certain circumstances and should not receive remuneration except if authorized by the enduring power of attorney.

The proposed amendments strengthen the protections against fraud and financial abuse by giving financial institutions the right to freeze funds or decline to follow instructions if there are reasons to believe that an attorney has misappropriated funds, as well as by giving the Public Guardian and Trustee more powers to investigate an attorney on their own accord or if they have received reports alleging abuse or neglect by an attorney.

The proposed changes also include provisions on implementing a registry for enduring powers of attorney and on filing applications to the Supreme Court of Yukon seeking to validate an enduring power of attorney or to terminate an attorney’s authority to act.

These amendments seek to emulate best practices in other jurisdictions, to ensure that the territory adheres with the Uniform Law Conference of Canada and to draw from the responses of Yukoners during the public engagement conducted by the territorial government from March 10 to May 10.