In the wake of the uncertainty generated by the pandemic, persons have taken greater interest in obtaining certainty in other aspects of life. In particular, persons have made it a priority to organise their affairs, take steps to ensure their wishes are documented and can be effected if necessary. Many persons consider the only necessary document in the organisation of their estate to be the creation of wills. While the creation of wills is a prudent step, a will is effective from the date of death until the estate is wound up. To address any period where a person’s wishes cannot be effectively obtained other documents are necessary. In particular, consideration should be given to the creation of powers of attorney, enduring powers of attorney and heath care, or personal welfare, declarations as a part of proper estate planning.
With its foundation in the law of agency, a power of attorney gives a person appointed by its terms authority to deal with the financial and business affairs of another. Such power of attorney could be used to complete a business transaction or other financial matters in circumstances where a person is prevented from attending to the transaction or matter personally. A power of attorney can be granted generally or limited to a specific transaction or time frame. A power of attorney, in its original format and usage, is terminated by any period of mental incapacity of the donor, including but not limited to mental disorders, dementia and Alzheimer’s disease.
An enduring power of attorney, created by the Powers of Attorney Act, Chapter 81, Statute Law of The Bahamas (the “Act”), makes it possible for a power of attorney to remain in existence and valid after a person has become mentally incapacitated. The use of powers of attorney and enduring powers of attorney permit the financial and business affairs of a person to continue uninterrupted during periods of absence, confinement or quarantine and enables the donee of the power to act on behalf of such person. A health care or personal welfare declaration enables a person to convey her wishes and desires regarding medical treatment, the extent of any medical intervention and her personal care. Faced with periods of confinement or quarantine, whether as a result of health concerns, restricted movement or otherwise, these additional documents can enable the plans and aspirations of the donor to be fulfilled.
An Enduring Power of Attorney
Section 4 of the Act, which introduced enduring powers of attorney into the law of The Bahamas, provides:
“(1) The authority of a donee given by an instrument creating a power of attorney that –
- provides that the authority is to continue notwithstanding any mental incapacity of the donor; and
- is signed by the donor and a witness to the signature of the donor, other than the donee or the spouse of the donee,
is not terminated by reason only of the subsequent mental incapacity of the donor that would but for this Act terminate the authority.”
In addition to the provisions of the Act, the Powers of Attorney Rules, established pursuant to the Act, mandates conditions for the valid and effective execution of enduring powers of attorney.
To ensure the validity of an enduring power of attorney created in accordance with the Act, the instrument must, with certain permissible deletions and adaptions provided for in the Act and its accompanying rules, be in the prescribed form under the legislation. To the extent the instrument creating the enduring power of attorney purports to exclude any required provision of the Act or its rules, the instrument would be invalid as an enduring power of attorney under the statute. In that event, if such instrument becomes necessary upon a person becoming mentally incapacitated, the invalid document would be ineffective. The Act and its rules also require that the instrument be signed by both the person appointing another to deal with her financial and business affairs and the person being appointed. The duly executed and properly witnessed instrument must also be lodged at the Supreme Court Registry.
After the enduring power of attorney has been fully executed and lodged with the Supreme Court Registry, it may be properly relied upon and utilised by the person(s) appointed to deal with the financial and business affairs of the appointor.
Where however there are health care and personal care decisions to be made, or will likely need to be made, a power of attorney or an enduring power of attorney is inapplicable. Under section 2 of the Act, mental incapacity is defined as meaning in relation to the “person that the person is incapable … of managing and administering his property and affairs”. On that basis, considering the definition of “mental incapacity”, the scope of the authority derived from an enduring power of attorney thereunder would be limited to property, business and financial matters. The authors of Butterworths Wills, Probate & Administration Service (issue 119, June 2021) note at paragraph 2.3 that the English Court of Protection has deleted from enduring powers of attorney provisions directed at health care or personal care matters. Accordingly, where it is desirable to convey wishes or instructions for medical or health care decisions or other personal matters, such wishes or instructions ought to be set out in a statement declaring the person’s directions.
Health care and Personal Welfare Declaration
Many persons consider it unthinkable and/or inhumane to be placed on machines or other treatment methods to sustain bodily functions where there is no detectable brain function while other persons prefer that every medical resource available should be pursued to sustain life for as long as possible. In order to assist family members to determine a person’s position with regard to such treatment a health care and personal welfare statement or declaration could be helpful. In some jurisdictions such documents are termed ‘living wills’ or ‘advanced directives’ and are supported by legislation enacted for that purpose. At present, in The Bahamas there is no legislation that specifically addresses or permits the creation of such instruments. However, the creation of a declaration of a person’s wishes may be made in accordance with the Oaths Act, Chapter 60, Statute law of The Bahamas to help to avoid family uncertainty and conflict.
In creating a health care declaration, one may derive guidance from decisions of the courts in the U.K. In considering the issue of such instruments regarding medical treatment, the English Court of Appeal in In Re T. (Adult: Refusal of Treatment)  Fam 95, per Lord Donaldson of Lymington M.R., held:
“… An adult patient who, like Miss T., suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered. … This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent …”
In another English case, Re C (adult: refusal of medical treatment)  1 All ER 819, it was held that the court, exercising its inherent jurisdiction, may via injunction or declaration rule that an individual was capable of refusing or consenting to medical treatment, and that could include future medical treatment. Finally, Mr. Justice Munby in HE v A Hospital NHS Trust and another  EWHC 1017 (Fam) summarised the law at paragraph 46 thereof as follows:
“… I can summarise the law as follows:
- There are no formal requirements for a valid advance directive. An advance directive need not be either in or evidenced in writing. An advance directive may be oral or in writing.
- There are no formal requirements for the revocation of an advanced directive. …
- An advance directive is inherently revocable. Any condition in an advance directive purporting to make it irrevocable … and any provision in an advance directive purporting to impose formal or other conditions upon its revocation, is contrary to public policy and void. …
- The existence and continuing validity and applicability of an advance directive is a question of fact. Whether an advance directive has been revoked or has for some other reason ceased to be operative is a question of fact.
- The burden of proof is on those who seek to establish the existence and continuing validity and applicability of an advance directive.
- Where life is at stake the evidence must be scrutinised with especial care. Clear and convincing proof is required. …
- If there is doubt that doubt falls to be resolved in favour of the preservation of life.”
In light of the above, it is clear that it is permissible to designate, in some form, directions for medical and health care as well as personal care. For certainty and ease of reference, it is advisable that the authorisation regarding medical, healthcare and personal care matters be addressed in a writing which can be produced and consulted as necessary. There is at present, no reported Bahamian case law on the issue; so it remains to be determined what guidance the court would give in the circumstances. However, setting out in an official document a person’s wishes, instructions and directions for medical treatment and the scope of treatment to be administered when such instructions cannot be verbally communicated would provide guidance to family members and medical professionals when determining a treatment plan. Where the declaration addresses personal care, the wishes of the person for matters like living arrangement, home care versus residential institutions, would assist in avoiding family conflict as to where grandma should live.
Good estate planning addressing the avoidance of issues in the event of a prolonged absence, an inability to move freely or difficulty in communicating can be achieved through the creation of a will, an enduring power of attorney and a health care and personal care declaration. The combination of these documents would ensure that a person’s wishes and directions are clearly discerned and effected during any periods of incapacity, whether physical or mental. The existence of such estate planning documents can also avoid family conflict and discord. The use of a combination of these essential planning documents can give persons comfort and certainty in the midst of an uncertain and unsettling time.
ABOUT THE AUTHOR
Sharmon Ingraham is a Senior Associate in the firm’s Private Client & Wealth Management Practice Group where her practice includes advice to trust companies on matters concerning trust administration and creation, estate administration, private client wealth management, wills, company law and international commercial contracts.