Fries with that Will? Part Ten

Mark Handelman


SDA subsection 47(1)(a), reproduced above, provides that a person is capable of revoking a POA if at the time of revocation he or she is capable of executing a POA.

However, what if the POA contains “advance directives” about care? Remember that the advance directive is only effective if the Grantor was capable of expressing it at the time of execution and that a higher test of capacity applies to treatment wishes than to capacity to execute the POA. So, revocation of a POA may not operate to revoke an “advance directive” in a POA if at the time of revocation the Grantor is incapable respecting that treatment wish.

Revocation must be in writing [SDA ss. 53(2)], usually accomplished in the preamble to a new POA to be executed. Note that a person may have multiple POAs [SDA ss. 53(1)(c)], in which case care must be taken in revocation to identify which are revoked.

But, did the Grantor, in revoking the prior POA also intend to nullify the treatment directions contained in the former POA? This will not be a problem if the new POA only changes the named Attorneys but otherwise is consistent with the prior POA. However, if the care directions contained in the new POA are different than in the former one and if there is a concern that your client’s capacity respecting treatment decisions has waned in the interval, you may have to address your mind to both tests for capacity: capacity to execute the POA as well as capacity to express wishes about treatment.

If the POA being revoked contains “special provisions” authorizing the use of force, restraint and/or detention against the Grantor, SDA s. 50 imposes special requirements for the revocation of those provisions.

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