Can an Attorney Provide Charitable Gifts on Behalf of the Grantor in Saskatchewan?

by Jeffrey Norwig, Partner, McDougall Gauley

As a lawyer practicing in Saskatchewan, the focus of this article will be on the rules surrounding this question within this province. If you are interested in the rules in other jurisdictions, I recommend contacting a lawyer practicing in that jurisdiction.

In the role of an attorney under a Power of Attorney, the attorney must undertake many duties on behalf of the grantor during their lifetime if they have capacity issues. It is not an easy or forgiving task to manage the grantor’s affairs. One of these requirements may be to deal with the property and financial affairs of the grantor. This may involve continuing charitable gifts that the grantor has begun during their lifetime. This raises the question: Can the attorney provide charitable gifts on behalf of the grantor?

To answer this question, one must look to the legislation and regulations in place that govern Powers of Attorney, such as The Powers of Attorney Act, 2002 (the “Act”). Under this Act, it sets conditions around whether the attorney can provide gifts from the grantor’s estate. The conditions are as follows:

1. The attorney must have reasonable belief that the grantor would have made the gift while the grantor had capacity;

2. The amount of the gift must not be detrimental to the grantor’s estate to meet the needs of the grantor, their spouse or other dependents;

3. The value of the gift does not exceed the prescribed amount ($1,000.00).

There is wording in the Act the ability of the grantor to prescribe a different amount but a court must be satisfied that it is appropriate for the attorney to make the gift over $1,000.00. The issue with this provision is that it requires the attorney to make an application to the court to approve the gift over $1,000.00, which is an additional expense to the grantor’s estate.

As you can see due to the legislation, an attorney may be restricted as to the amount of a charitable gift they can make during the grantor’s lifetime. Some of the ways the grantor can address this restriction would be as follows:

1. Provide the gift while the grantor still has capacity to manage their own affairs;

2. Set up a direct withdrawal from the grantor’s account to provide ongoing monetary gifts while the grantor is still managing their financial affairs to ensure that the charitable gift will continue even if the grantor loses capacity (provided the grantor will have the means to continue the gifts into the future); or

3. The grantor can set up the charitable gift within their Will to give effect to the gift upon the grantor’s passing.

As you can see, there are potential issues with being able to have your attorney grant charitable gifts on your behalf when you become incapacitated.

Questions? Contact Jeffrey at jnorwig@mcdougallgauley.com