Home > Personal Strategies > Wills Planning & Administration > Wills > Enduring Powers of Attorney - Land
Cautious persons will have executed an Enduring Power of Attorney giving their spouse or other close relative or friend the power to manage their financial affairs in the event that they become disabled or mentally incapacitated. Having an Enduring Power of Attorney in such circumstances is indispensable, as otherwise an application may have to be made to a Court to have a trustee appointed to administer that person's financial affairs. (Until the Personal Directives Act is proclaimed, a Court Order will still be required to appoint a guardian of the person.)
In the past, Enduring Powers of Attorney have typically simply empowered the attorney to do, on behalf of the grantor, all acts regarding his or her estate which the grantor could have done but for the incapacity.
The Land Titles Act authorizes an owner of land to grant a Power of Attorney to a person authorizing that person to act on behalf of the owner with respect to dealings with the owner's land. The Registrar of Land Titles has taken the position that in order for the Enduring Power of Attorney to be effective with respect to land, the Power of Attorney must clearly indicate that the owner wished to give to the attorney the power to deal with land. The result is that in the event that the attorney wishes to transfer or mortgage a person's lands, if the intent is not sufficiently expressed in the Enduring Power of Attorney, then the attorney may have to apply to a Court for confirmation of that person's authority to deal with the land.
In order to circumvent this problem area, it is recommended that there be added a clause to all existing Enduring Powers of Attorney and to all new Enduring Powers of Attorney to make it clear that the attorney is entitled to deal with lands.