Can You Name More Than One Attorney in a Manitoba Enduring Power of Attorney?

Many people want more than one person looking after their affairs. You might trust two children equally, or want a back-up if your first choice cannot act. Manitoba's law allows this, but how you word it makes a real difference to how the attorneys work.

This article explains how naming several attorneys works under The Powers of Attorney Act, who can act, the standard of care they must meet, and when the power ends. It is general information, and a lawyer can confirm how it applies to your situation.

This article covers the law of Manitoba.

Naming several attorneys: joint or successive

A donor is the person who gives the power, and the attorney is the person authorized to act for the donor. Under The Powers of Attorney Act, a donor may appoint any number of persons to act jointly or successively.

• Jointly means the attorneys act together as a group.
• Successively means one attorney acts, and the next steps in only if the earlier one cannot or does not continue.
• If the document does not say whether they act jointly or successively, they act in the order named.

Because of that default, leaving the wording vague can produce a result you did not intend. If you want two people to share the job, say so clearly.

Think about how you want the arrangement to work day to day. Some people want two children to share every decision. Others want one person to act first, with a back-up ready only if that person cannot continue. These are different set-ups, and the document should make your choice obvious to anyone who reads it.

How joint attorneys make decisions

Joint attorneys act by majority. With three attorneys, for example, two agreeing can carry a decision.

Two attorneys can disagree and be stuck. Unless the document provides otherwise, the first-named attorney decides a deadlock. That gives the first person on the list extra weight, so think about whether that is what you want.

Who can be an attorney

At the time the donor signs, the individual must be an adult, mentally competent, and not an undischarged bankrupt. This applies to each person you name, including back-ups.

• They are an adult when you sign.
• They are mentally competent when you sign.
• They are not an undischarged bankrupt when you sign.

Mental incompetence under the Act means the inability of a person to manage their affairs. Beyond the legal minimum, think about practical matters such as whether the people live nearby, whether they get along with each other, and whether they are comfortable with paperwork and record-keeping.

Standard of care and making the power last

An attorney who is not paid must use the judgment of a prudent, discreet and intelligent person managing their own affairs. An attorney who is compensated must meet the higher standard of a prudent professional managing other people's property.

A power of attorney continues despite the donor's mental incompetence only if all of these are met:

• It is in writing.
• The donor signs it, or acknowledges the signature, 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.

An enduring power is void if the donor could not understand its nature and effect when signing.

When a power of attorney ends, and what to do next

A power of attorney terminates when the donor dies. It also ends if the attorney dies, becomes bankrupt, or becomes mentally incompetent. An attorney who acts after termination, including after the donor's death, is not liable to the donor or the estate if they did not know and with reasonable care could not have known. Acts in favour of a person who did not know of the termination remain valid.

Because the power can end for several reasons, it helps to think ahead about who would step in. How this applies depends on your situation, so it is worth confirming with a lawyer.

When drafting, consider these points and take them to a lawyer:

• State plainly whether your attorneys act jointly or successively.
• If joint, decide whether you want the first-named attorney to break a deadlock or a different method.
• Name back-ups in order, since an attorney can die, go bankrupt or become incompetent.
• Include the wording that the power continues despite mental incompetence.
• Arrange proper witnessing when you sign.

Frequently asked questions