Power of lawyer – termination – upon demise of the lawyer

Kirkpatrick appeals the dismissal of his motion to act as his aunt’s attorney. After the death of the two named lawyers, the complainant applied for the aunt to be authorized as agent. The aunt was unable to work at this point. Applying common law, the judge came to the conclusion that the death of the aforementioned lawyers would invalidate the permanent power of attorney. The judge came to the conclusion that the complainant’s permanent power of attorney has already expired due to the death of both lawyers, so that the complainant cannot subsequently take the place of the appointed lawyer.

HELD: Appeal permitted. Section 5 (1) (c) of the Powers of Attorney Act expressly provided that a judge could, on request, replace another person for the lawyer for an important reason. A simple reading of this section would consider appointing an attorney other than that designated by the donor. The word “substitute” was not limited or restricted to obliging an attorney to act until the time of his representation. The judge’s interpretation would have required the attorney himself to obtain permission to find a substitute attorney. The law did not provide for such a requirement. The simple meaning of s. 5 (1) (c) was that a judge could appoint a replacement for a dead attorney if the judge was satisfied that it was appropriate. The unrestricted simple meaning of s. 5 (1) (c) was in accordance with the pragmatic legal regulation and the legislative goal.

Kirkpatrick (Re), [2021] NSJ No. 255, Nova Scotia Court of Appeal, CA Beaton, AS Derrick and JE Fichaud JJ.A., June 15, 2021. Digest No. TLD-July122021008

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