Enduring or Continuing Power of Attorney

A POA that continues even if and after a donor becomes incapacitated.

A power of attorney that "endures" or continues notwithstanding the subsequent incapability of the donor to manage his or her affairs.

Sometimes referred to as a continuing power of attorney.

At common law, a power of attorney automatically expires upon the donor’s incapacity to manage their affairs. This acts as a precaution since an incapable donor can no longer revoke a power of attorney.

As stated in Egli v. Egli 2005 BCCA 627:

“By a power of attorney, one individual appoints another to act for him or her.  At common law, a power of attorney ceased to be valid when the principal became incapacitated by mental infirmity.  Hence, the perceived need for legislative intervention in recent times to provide for enduring powers of attorney that would continue to be effective despite mental infirmity of the donor.”

This little common law virus may well defeat the whole purpose of a person's power of attorney, rendering it null and void at the very moment that it is most needed.

However, where the laws of a particular jurisdiction allows it (and many do not), a power of attorney can be stated to continue or endure even in the event of the donor’s subsequent incapacity (this is called a continuing or enduring power-of-attorney).

The laws of the donor’s jurisdiction should be consulted carefully to ensure that there is legislation enabling continuing/enduring powers of attorney.

For example, British Columbia's Power of Attorney Act (as of 2007), at ¶8(1), reflects the common law rule but also provides:

“The authority of an attorney given by a written power of attorney that provides that the authority is to continue despite any mental infirmity of the donor, and is signed by the donor and by a witness to the signature of the donor, other than the attorney or the spouse of the attorney, is not terminated only because of subsequent mental infirmity that would but for this Act terminate the authority.”

In Egli v. Egli (op. cit.), the Court reproduced this enduring POA:

“THIS GENERAL POWER OF ATTORNEY is given on August 6, 1998 by HANS EGLI, retired, of (address here), British Columbia (postal code here).

I appoint the following person:

DAVID HANS EGLI, businessman, of (address here with postal code), to be my attorney in accordance with the Power of Attorney Act and to do on my behalf anything that I can lawfully do by an attorney.

In accordance with the Power of Attorney Act I declare that this power of attorney may be exercised during any subsequent mental infirmity on my part.

AND HEREBY DECLARE that the effect of Section 56 of the Land Title Act is expressly excluded to the intent that this power of attorney shall remain valid after three years after the date of its execution.

AND HEREBY DECLARE that pursuant to Section 27 of the Property Law Act my attorney is expressly authorized to use this power of attorney to sell, transfer or charge to or in favour of himself any land or interest therein owned by me.”