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Professional Standards Manual

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4. General Information

(a) Contract Clauses - View Entire Section

(VIII) Due Diligence Required When Dealing with the Elderly

[11/03/2011 The following section was added to the Professional Standards Manual]

Licensees should exercise due diligence when dealing with persons who appear to suffer from memory impairment, dementia or some other form of mental disability.

Licensees should be aware that there is new legislation that came into force on September 1, 2011 that deals with any incapacity on the part of an individual. The provincial government has decided to bring into force portions of the Adult Guardianship and Planning Statutes Amendment Act, 2007 (Bill 29) as amended relating to the Power of Attorney Act, the Representation Agreement Act, advance medical directives, health care consent, and other matters. These reforms create three incapacity planning documents: enduring powers of attorney, representation agreements, and advance directives.

Section 10 of the amendments defines an enduring power of attorney to mean a power of attorney:

  1. In which an adult authorizes an attorney (adult person) to:
    1. make decisions on behalf of the adult, or
    2. do certain things in relation to the adult’s financial affairs, and
  2. (b) that continues to have effect while, or come into effect when, the adult is incapable.

“Financial Affairs” is defined to include “an adult’s business and property, and the conduct of the adult’s legal affairs.”

A representation agreement provides a mechanism whereby an adult may arrange in advance how, when and by whom decisions about their health care or personal care, the routine management of their financial affairs or other matters will be made if they become incapable of making decisions independently.

As of September 1, 2011, an adult person will be able to predetermine what health care they may wish to have, or not have, at a later time when they are no longer capable of giving instructions. Any adult will be able to make an advance directive in which he or she may give or refuse consent to any health care in the future provided that any instructions will not be valid and will be severed from the advance directive if carrying out these instructions would be contrary to law. Many advance directives will address end of life decisions, but the document may also be used to address specific types of treatment.

Licensees should contact family members to determine whether they or anybody else hold a power of attorney or have been appointed as a legal representative or substitute decision maker for this person under any of these statutes to ensure that this person is making the right decisions.

Licensees should obtain a true copy of the power of attorney, representation agreement or advance directive for their file, and read the document to ensure that they are dealing with the person who has the legal authority to deal with the property.

If there are no family members, or neither the family members or anybody else does not hold a power of attorney or has not been appointed as a legal representative or substitute decision maker, the licensee should ensure that the person obtains independent advice before entering into any real estate transactions.

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