- A personal directive deals only with personal care decisions, while powers of attorney generally cover estates and financial matters.
- A personal directive is in effect only when the maker is alive and incapable of making the decision.
- The delegate must be at least 19 unless the maker's spouse, and the delegate cannot witness.
Nova Scotia has two separate documents for planning around illness or old age, and people often wonder why they cannot use just one. The reason is that they cover different parts of your life.
This article explains what each document does, when each applies, and who can be named or act as a witness. Because details can depend on your circumstances, a lawyer can confirm what suits you.
This article covers the law of Nova Scotia.
Two documents, two jobs
A personal directive deals only with personal care decisions, such as health care, shelter and safety. Powers of attorney generally cover estates and financial matters.
| Personal directive | Power of attorney | |
|---|---|---|
| Covers | Personal care decisions | Estates and financial matters |
| Person named | Delegate | Attorney |
| Can continue through incapacity | In effect when the maker is incapable of the decision | Yes, if it has an enduring clause |
Personal care decisions are choices about things like health care, shelter and safety. Money and property matters sit on the power of attorney side. Because the two documents cover different ground, having one does not do the job of the other. Many people think about both at the same time, and the person they trust for personal care may be different from the person they trust with money.
When each takes effect
A directive is in effect only when the maker is alive and incapable of making the decision. While you can decide for yourself, you keep making your own personal care choices.
A power of attorney becomes an enduring power of attorney when it contains an enduring clause, meaning it continues despite the donor's incapacity. It ends when the adult dies, regains capacity and ends it, or a court appoints an estate representative under the Adult Capacity and Decision-making Act.
In plain terms, a personal directive stays in the background while you can decide for yourself. It matters only if you are alive and unable to make the decision in front of you. An enduring clause is what lets a power of attorney keep working if you become incapable. It is worth checking the wording of any power of attorney you already have to see whether it contains that clause.
The Public Trustee does not supervise attorneys. That makes the choice of attorney especially important, so think about who is organized, honest and willing to keep clear records of what they do.
Who can be named and who can witness
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.
- The delegate cannot witness the directive.
- The delegate's spouse cannot witness it.
- Anyone signing for the maker cannot witness it.
Nineteen is also the age at which a person attains the age of majority and ceases to be a minor in Nova Scotia.
When you choose a delegate, think about someone who knows your values, is likely to be available when needed and will be comfortable speaking up for you. It can also help to write down your wishes so the person is not left guessing. Choosing your witnesses ahead of time avoids a document that has to be redone.
Witnessing and signing rules for powers of attorney should be confirmed with a lawyer, as they depend on the Powers of Attorney Act.
If you have no delegate or directive
If no delegate or directive applies, a statutory hierarchy of decision-makers applies, with the Public Trustee last. Who would be asked to decide in your situation depends on the facts, so it is worth confirming with a lawyer.
Having a directive in place means you decide who speaks for you, rather than relying on that statutory hierarchy.
For money matters, the Public Trustee does not supervise attorneys, and concerns go to the Supreme Court under the Powers of Attorney Act.
What to do next
A little preparation makes a conversation with a lawyer more useful. Start by writing down your thoughts, then compare them with the points above.
- List who you trust for personal care decisions and who you trust with money; they may be different people.
- Write down the personal care wishes you want your delegate to know about.
- Check that your chosen delegate is at least 19, or your spouse.
- Choose witnesses who are adults and are not the delegate, the delegate's spouse or anyone signing for you.
- Find any existing power of attorney and note where it is kept.
- Ask whether your power of attorney has an enduring clause.
- Give copies to the people named and to your family.
- Speak with a lawyer to confirm the requirements for your situation.
Frequently asked questions
Can one document cover both health and money?
They are separate. A personal directive deals only with personal care decisions, while powers of attorney generally cover estates and financial matters.
When does a personal directive start to apply?
Only when the maker is alive and incapable of making the decision.
Who can be a delegate?
The delegate must be at least 19, unless the delegate is the maker's spouse.
Who cannot witness a personal directive?
The delegate, the delegate's spouse, and anyone signing for the maker may not witness it.
Sources
- Age of Majority Act — nslegislature.ca
- Public Trustee – FAQ on adults considered mentally incompetent — novascotia.ca
- Public Trustee – FAQ on Health Care Decisions — novascotia.ca
- Department of Justice – Personal Directives in Nova Scotia booklet — novascotia.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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