Statutes – Interpretation – Powers of Attorney Act, 2002 – Section 2
The applicant brought an originating application to seek a declaration that the enduring general power of attorney (POA) granted to him by his father, Eddie Rumbold (E.R.) in June 2016 remained valid and operative and that the 2019 enduring power of attorney executed by E.R., appointing the respondents as his joint personal and property attorneys and revoking the 2016 POA, was invalid and inoperative. The applicant argued that E.R. did not have the requisite capacity to execute the 2019 POA and revocation on the date of execution. E.R.’s mental faculties were beginning to decline in 2016 and by August 2017, he was moved into an assisted living facility. Many affidavits were submitted by friends and health care workers that deposed to the deterioration of his mental condition. He had become increasingly dependent on and compliant with those who were taking charge of him and directing him. The respondents alleged that E.R. was being maltreated by his second wife and because of their concern for his well-being, they arranged for a lawyer to meet with him. The lawyer knew E.R. and during the meeting, E.R. signed the 2019 POA and the revocation of the 2016 POA. The lawyer signed the independent legal advice and witness certificate, stating that the nature and effect of an enduring POA had been explained to E.R. by him and in his opinion, E.R. had the capacity to understand the nature and effect of the document. The respondents then arranged to have E.R. moved away from his wife to another care home in their town. A physician and a nurse both performed assessments on E.R. in June 2019 and concluded that he had compromised mental capacity and was not able to provide informed consent. The applicant relied upon ss. 2(1)(a) and (b), 4 and 19(1)(b) of The Powers of Attorney Act, 2002 (PAA) and the Court of Appeal’s decision in Hrycyna v Hood in this application. In Hood, the court held that the Queen’s Bench chambers judge correctly determined that the definition of capacity based upon the provisions of the PAA went well beyond a mere basic understanding of the nature and effect of a document signed by a grantor. Capacity must be assessed on all the evidence and not just on the certificate of the lawyer who witnessed the execution of the POA. The respondents submitted the test for capacity identified in the context of the PAA was established in Buckley v Buckley: that the relevant time to assess must be at the time the document was executed. The definition of capacity in s. 2(1) of the PAA was not intended to apply to ss. 4, 19(1)(b) and 21 of the Act. Buckley, they argued, had not been overridden by Hood.
HELD: The application was granted. The court found that the POA executed in May 2019 could not stand. It held that the Court of Appeal’s decision in Hood was the law in Saskatchewan. The interpretation of the PAA requires the grantor to have capacity as stringently defined in s. 2 for any and all grants of authority to a personal and/or property attorney via execution of a POA, whether enduring or otherwise. The evidence showed that in the circumstances that existed at the time of the execution of the May 2019 POA, E.R. did not have the requisite capacity and that the 2016 POA continued to govern his affairs with the proviso that an assessment must be undertaken to assess whether E.R. was able to decide where he wanted to live.