Can an attorney appointed under a power of attorney change beneficiary designations on a retirement, savings or other plan?

Amendments to The Beneficiary Designation Act (Retirement, Savings and Other Plans) make it clear that an attorney acting under an enduring power of attorney can continue previous designations made under retirement, savings and other plans.

A power of attorney is the legal authority contained in a written document in which one person, the donor, gives authority to another person (or persons), the donee or donees, as the case may be, to manage some or all of their financial affairs during their lifetime. A power of attorney can be general, covering all of the donor's financial affairs, or it can be specific, covering only limited aspects of the donor's financial affairs.

 A power of attorney can take effect immediately upon signing, called a “non-springing” power of attorney, or it can take effect at a later date (typically upon the donor being declared incompetent by a medical doctor), called a “springing” power of attorney.

In Manitoba, The Powers of Attorney Act provides that the authority of an attorney under a power of attorney terminates if, among other things, the donor becomes mentally incompetent, unless the power of attorney provides that it is to continue despite the mental incompetence of the donor, which is called an ‘enduring’ power of attorney.

Changing Beneficiary Designations

Many clients express concern as to whether or not the donee appointed under their enduring or springing power of attorney has authority to make changes to beneficiary designations on their existing retirement plans, savings plans or otherwise. Courts in Manitoba have made it clear that the authority granted to donees under powers of attorney does not include the ability of the donee to change beneficiary designations on the donor's behalf.

Continuing Beneficiary Designations

What has become more complicated in Manitoba is whether donees are able to continue beneficiary designations under a retirement plan, savings plan  or otherwise.

 A  scenario where a donee may be required to continue a beneficiary designation would be when a holder of a Registered Retirement Savings Plan is required to convert their plan to a Registered Retirement Income Fund by December 31 of the year that the holder turns 71 years old. In this scenario, the holder of the plan may require their donee, if applicable, to continue their beneficiary designation under the original RRSP plan to the new RRIF plan.

Due to the uncertainty surrounding whether continuing designations is permitted by a donee, many lawyers will include, at the request of the donor, language in the power of attorney stating that the attorney appointed therein may maintain any existing beneficiary designations already held by the donor.

 Recent changes to the law provide clarity that continuing designations is permitted. . On March 10, 2022, the Manitoba government introduced Bill 19 titled “The Beneficiary Designation (Retirement, Savings and Other Plans) Amendment Act." Section 2.1(2) of the bill introduces the ability of a representative to continue a previous designation made under a plan under certain conditions. The bill received Royal Assent on June 1, 2022, and came into force on June 1, 2023.  

Impact

The amended Act permits representatives to continue previous designations made under a retirement plan, savings plan, or otherwise. A representative is defined in the Act as including, among others, an attorney acting under an enduring power of attorney under The Powers of Attorney Act, but only if the power of attorney confers the power to make the designation or renew, replace or convert a plan.

Outcome

 As per section 2.1(2) of the Act, representatives may continue a beneficiary designation under a plan if:

1. the plan renews, replaces or converts a similar plan of the participant;
2. the beneficiary designated in the plan is the same person who was the beneficiary designated under the similar plan immediately before that plan was renewed, replaced or converted; and
3. the designation is made by an instrument other than a will and the instrument is signed by the representative.

 Fillmore Riley LLP's Wills, Estates and Trusts Group

We offer planning and litigation services to individuals, fiduciaries, charities and institutions. Many of our planning practitioners are also part of Fillmore Riley’s highly regarded tax group. For more information, or if you have any questions, please contact a member of the Fillmore Riley Wills, Estates and Trusts practice.