Can a Person With Dementia Sign a Power of Attorney in Manitoba?

When a parent is diagnosed with dementia, families often worry that it is already too late to sign a power of attorney. Others are not sure what the word capacity means, or who decides whether a parent has it.

This article explains the Manitoba rules that apply to an enduring power of attorney and the test the law uses. It is general information, and a lawyer can look at your parent's specific situation.

This article covers the law of Manitoba.

What makes a power of attorney enduring

The person who gives the power is called the donor, and the person authorized to act for the donor is the attorney. Under The Powers of Attorney Act, a power of attorney continues despite the donor's mental incompetence only if it meets certain requirements.

Mental incompetence means the inability of a person to manage their affairs. An ordinary power of attorney does not do the job families usually want, which is to keep working once the parent can no longer manage money or property.

The capacity test at the time of signing

An enduring power of attorney is void if the donor could not understand its nature and effect when signing it. The question is therefore about understanding at the moment the document is signed.

A dementia diagnosis is not the same as a lack of understanding on a given day. How the condition affects your parent varies, so whether your parent meets the test depends on the facts. A lawyer can help you decide how to approach that question.

What the document must say and how it is signed

To continue despite the donor's mental incompetence, the power of attorney must meet all of these requirements:

• It is in writing.
• It is signed by the donor, or acknowledged by the donor, in a witness's presence.
• The witness signs in the donor's presence.
• It states that it is to continue despite the mental incompetence of the donor.

A document that misses one of these steps may stop working at the very time you need it.

Choosing the attorney and what the attorney owes

When the donor signs, the attorney must be an adult, mentally competent and not an undischarged bankrupt. A donor may name more than one attorney 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.

An uncompensated attorney must use the judgment of a prudent, discreet and intelligent person managing their own affairs. A compensated attorney must meet the standard of a prudent professional managing other people's property.

The Health Care Directives Act uses a separate test for health care decisions. A person has capacity if able to understand the relevant information and appreciate the reasonably foreseeable consequences of a decision or of no decision. A person 16 or older is presumed capable unless there is evidence otherwise, and capacity may exist for some treatments and not others.

What to do next

• Act soon: the test looks at the day of signing, so speak to a lawyer before more time passes.
• Gather your parent's existing documents, including any earlier power of attorney.
• Think about who is willing and able to act, and whether to name a backup.
• Ask a lawyer how capacity will be considered and documented for your parent.
• Remember that the power ends when the donor dies.

If no valid enduring power exists, a lawyer can explain what other options are open to your family.

Frequently asked questions