Can an Attorney Change a Will or Beneficiary in Manitoba?

You may have just learned that a parent, spouse or relative named someone as their attorney, and now you worry that person could rewrite the will, switch a beneficiary or give property away. It is a common concern, especially when the attorney is also a possible heir.

This article explains what a power of attorney is in Manitoba, what the law says about changing wills, and the limits that apply to an attorney's conduct. Some questions, such as exactly what a particular document allows, depend on its wording and are worth confirming with a lawyer.

This article covers the law of Manitoba.

What a power of attorney is

The person who gives the power is called the donor, and the person authorized to act for the donor is the attorney. An attorney does not need to be a lawyer. The word simply describes the role.

A power of attorney continues after the donor becomes mentally incompetent only if it meets set requirements. It must be in writing, signed by the donor (or acknowledged) in a witness's presence, signed by the witness in the donor's presence, and state that it continues despite the donor's mental incompetence. Mental incompetence means the inability of a person to manage their affairs.

An enduring power is void if the donor could not understand its nature and effect when signing. That matters if you doubt the donor had capacity at the time.

Can an attorney change the donor's will?

Start with how wills end. A will is revoked only by the methods in The Wills Act: a later valid will, a later writing declaring an intent to revoke made in will form, or burning, tearing or otherwise destroying it with intent to revoke. A change in circumstances alone does not revoke a will.

Some life events do affect a will by law. Marriage revokes a will unless an exception applies, such as a declaration that the will is made in contemplation of the marriage. After a divorce, annulment or the end of a common-law relationship, gifts to the former partner are revoked and the will is read as if that person died first, unless the will shows a contrary intention.

None of those rules turn on what an attorney does. Whether an attorney could ever sign or change a will for a donor is not something to assume. The answer depends on the facts and the documents, so ask a lawyer before you act on any belief either way.

Beneficiary designations and gifts

Beneficiary designations on things like insurance and registered plans, and gifts of the donor's property, are different questions from changing a will. What an attorney may do with them depends on what the power of attorney document says and on the law's standard of conduct. A lawyer can read the document and tell you what it allows.

These assets can matter a great deal after death. When a surviving spouse or common-law partner makes a Family Property Act claim, the deceased's assets include, to the extent no adequate consideration was received, jointly held property with survivorship rights to others, registered plans payable to others, and insurance or other payments made because of death. Transfers made before death can therefore affect more people than the attorney and the person receiving them.

The limits on an attorney's conduct

• Standard of care: an uncompensated attorney must use the judgment of a prudent, discreet and intelligent person managing their own affairs.
• Higher standard if paid: a compensated attorney must meet the standard of a prudent professional managing other people's property.
• Eligibility: when the donor signs, the attorney must be an adult, mentally competent and not an undischarged bankrupt.
• More than one attorney: a donor may name several to act jointly or successively, and if the document does not say which, they act in the order named. Joint attorneys act by majority, and unless the document says otherwise the first-named attorney decides a deadlock.

If an attorney's actions fall short of these standards, a lawyer can explain what options may be available to the donor or the family.

What happens when the donor dies

A power of attorney terminates when the donor dies. It also ends if the attorney dies, becomes bankrupt or becomes mentally incompetent. After death, the attorney has no authority as attorney, and the estate is dealt with by the executor named in the will or an administrator.

There is a narrow exception. An attorney who did not know of the termination, and with reasonable care could not have known, is not liable to the donor or estate for acting afterward, and acts in favour of a person who did not know of the termination remain valid.

What to do next

• Ask for a copy of the power of attorney and read the wording, including whether it states that it continues despite mental incompetence.
• Find out who the attorney or attorneys are and whether they are paid.
• Locate the current will and note where the original is kept.
• List the accounts, plans and insurance policies that name beneficiaries.
• Write down dates and amounts of any transfers or gifts that concern you.
• Speak with a Manitoba lawyer promptly if you suspect misuse or doubt the donor's capacity when the document was signed.

Early advice helps because the answer often turns on the exact documents and timing.

Frequently asked questions