Can Someone With Dementia Sign a Power of Attorney in Nova Scotia?

Noticing memory loss in a parent is hard, and the practical worry arrives fast: can they still sign the paperwork that lets you help with money and health decisions? A diagnosis of dementia does not by itself answer that question.

This article explains the difference between the two main documents, what the law says about how they work, and what families can do if time has run short. The test for capacity depends on the person and the decision, so a lawyer should confirm it for your situation.

This article covers the law of Nova Scotia.

Two documents, two different jobs

A power of attorney generally covers estates and financial matters. A personal directive deals only with personal care decisions such as health care, shelter and safety.

An enduring clause matters because it makes the document continue despite the donor's incapacity. Without one, the document is not designed to carry on once capacity is lost.

Many families assume one document covers everything. In practice, a person may have one, both or neither, so it helps to find out which documents exist before deciding what to do. Each is a separate document with its own purpose.

Does dementia mean they cannot sign?

Not automatically. Whether a person with early dementia can sign a particular document depends on their situation and on the document, so it is worth confirming with a lawyer. Early dementia can leave someone able to understand a particular document on a good day, while later stages may not. The exact legal test and how a court applies it depend on the facts, so ask a lawyer to confirm.

Asking a doctor for an assessment is a practical step, though how it is used depends on the facts and is worth confirming with a lawyer. It is not a guarantee that the document will never be questioned. A lawyer who meets the person alone, asks open questions and writes down the answers can add useful support.

• Act sooner rather than later, since capacity can change over time.
• Let the person speak for themselves; avoid answering for them.
• Ask the doctor for an assessment close to the signing date.
• Keep notes of who was present and what was discussed.

The two documents cover different decisions: a power of attorney generally covers estates and financial matters, while a personal directive covers personal care decisions. This is why a single label, such as dementia, rarely settles the question.

Signing requirements for a personal directive

A personal directive must be written, dated, signed and witnessed by an adult. The delegate must be at least 19, unless the delegate is the maker's spouse. Nineteen is also the age at which a person ceases to be a minor in Nova Scotia.

The delegate, the delegate's spouse, and anyone signing for the maker may not witness the document. Choosing the witness carefully matters, because a document with a disqualified witness invites an argument later.

If no delegate or directive applies, a statutory hierarchy of decision-makers applies, with the Public Trustee last. Putting a directive in place can avoid leaving that outcome to chance.

If capacity is already lost

Whether someone who has lost capacity can sign a new document depends on the facts, so it is worth confirming with a lawyer. If a valid enduring power of attorney already exists, the attorney can usually continue acting under it, because the enduring clause keeps it going despite incapacity.

If there is no document, the options depend on your parent's situation, so it is worth confirming with a lawyer. A lawyer can explain how it works in your case.

The Public Trustee does not supervise attorneys. Concerns about an attorney go to the Supreme Court under the Powers of Attorney Act. A power of attorney also ends when the adult dies, regains capacity and ends it, or a court appoints an estate representative.

What to do next

Before you meet a lawyer, gather copies of any existing documents, a list of your parent's accounts and the contact details of their doctor. Having these ready makes the first conversation shorter and more useful.

• Check whether your parent already has a power of attorney and whether it has an enduring clause.
• Check whether a personal directive exists and who the delegate is.
• Book a prompt medical review if there is any doubt about understanding.
• Speak with a lawyer about whether the person can sign now, and how to document it.
• If capacity is lost and nothing is in place, ask a lawyer about the court route.

Frequently asked questions