In last week’s article I looked generally at the nature of a power of attorney, the powers granted thereunder and how it can be revoked.
Today I will address the misconception that under our law, a power of attorney is drawn up to permit the agent to exercise the authority of the grantor of the power after the grantor has lost his mental capacity to look after his own affairs.
In the letter to which I was responding in last week’s article, the writer mentioned that an attorney-at-law had advised her to have her mother execute a power of attorney to facilitate some land transactions.
The mother is resident overseas. The writer responded to the attorney-at-law by advising her that it was not necessary because her “mother was not ill and was in her right frame of mind”.
Looking at the letter in full, it was clear that the writer also held the view that the power of attorney could have been used to have the mother’s land transferred to the grantee of the power contrary to the wishes of the grantor.
In some countries, for example Canada, a person is permitted to make an enduring power of attorney, which continues to be effective even after the donor of the power has ceased to have the mental capacity to manage his own affairs.
In Barbados, the donor of the power must be mentally competent at the time of making the power of attorney and must retain his mental capacity, throughout the duration of the power of attorney. If the donor loses his mental capacity, the power of attorney is terminated.
In cases where the donor of the power loses his mental capacity, the correct legal procedure for a person who wants to assume management and administration of the property and affairs of the mentally incompetent person is to apply to be appointed a receiver under the Mental Health Act Chapter 45 of the Laws of Barbados.
Part IV of the Mental Health Act deals in detail with the management of property and affairs of persons who are incapable by mental disorder of managing their affairs and property. The term used in the legislation to describe these persons is “patient”.
Section 22 of the Mental Health Act empowers the court to appoint a receiver for a patient. Before making such an appointment, the court must be satisfied, after considering medical evidence, that a person is incapable by reason of mental disorder of managing his affairs.
The term mental disorder is defined in the legislation and would, of course, cover the common cases of mental capacity such as dementia caused by senility.
The court is empowered under Sections 18 and 19 of the act to exercise certain functions and powers on behalf of patients. Section 22 permits the court to appoint a receiver.
The provisions of the legislation permit the court to exercise some oversight and therefore, it is highly recommended that where there are funds and property of the patient that need to be managed, that the provisions of the Mental Health Act be employed.
As far as the belief exists that the donee of a power of attorney is entitled to ignore the wishes of a donor, this is not the case. The donee is in fact simply acting on behalf of the donor for convenience and is in effect expected to act on instructions.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com.
