- A Manitoba power of attorney continues after the donor becomes mentally incompetent only if it meets the enduring requirements, including a statement that it continues despite incompetence.
- A power of attorney ends when the donor dies, or if the attorney dies, becomes bankrupt or becomes mentally incompetent.
- An attorney who acts for an incapable donor must meet a legal standard of care, and an attorney who did not know the power had ended is protected in some cases.
When a parent can no longer manage their money or property, families often find an old power of attorney in a drawer and wonder whether it can still be used. The answer depends on how the document was written and signed, not only on the fact that it exists.
This article explains how The Powers of Attorney Act treats a power of attorney once the person who gave it stops being able to manage their affairs. It covers what makes a power last, what ends it, who can step in, and how an attorney is expected to act. It is general information, not advice on your family's situation.
This article covers the law of Manitoba.
The key question: is it an enduring power of attorney?
The Act uses a few plain terms. The donor is the person who gives the power, and the attorney is the person authorized to act for the donor. Mental incompetence means the inability of a person to manage their affairs.
A power of attorney continues despite the donor's mental incompetence only if it meets the requirements in section 10(1) of the Act. A document that does not meet them is not enduring, which means it is generally not safe to assume it can be used once the donor is incompetent. A lawyer can review the actual document.
What the document must say and how it must be signed
Under section 10(1), an enduring power of attorney must meet all of these requirements:
- It is in writing.
- It is signed by the donor, or the donor acknowledges the signature, in a witness's presence.
- It is signed by the witness in the donor's presence.
- It states that it is to continue despite the mental incompetence of the donor.
Even a document that ticks every box can be challenged on one ground. An enduring power is void if the donor could not understand its nature and effect when signing. This looks at the donor's state of mind on the day of signing, not their condition years later.
What ends a power of attorney
Even a valid enduring power does not last forever. The main events that end it are set out below.
| Event | Effect on the power |
|---|---|
| The donor dies | The power terminates |
| The attorney dies | The power ends |
| The attorney becomes bankrupt | The power ends |
| The attorney becomes mentally incompetent | The power ends |
The death of the donor matters most for families. After death, the attorney no longer has authority, and the estate is dealt with by the personal representative named in the will or appointed by the court. The attorney's role does not carry over.
Successive attorneys and how they act
A donor may appoint any number of people to act jointly or successively. If the document does not say which, they act in the order named. This is how a backup attorney can step in if the first-named attorney can no longer act, but the document must support that.
When attorneys act jointly, they act by majority. If they deadlock and the document says nothing different, the first-named attorney decides.
An attorney must be an adult, mentally competent and not an undischarged bankrupt at the time the donor signs.
While acting, an attorney who is not paid must use the judgment of a prudent, discreet and intelligent person managing their own affairs. A paid attorney must meet the higher standard of a prudent professional managing other people's property.
If an attorney acts without knowing the power has ended
Sometimes a power ends without the attorney realizing it, for example after the donor has died. An attorney is not liable to the donor or the estate for acting after termination if they did not know of it and could not have known with reasonable care. Acts done in favour of a person who did not know of the termination also remain valid.
This protection is limited. It depends on the attorney not knowing and on reasonable care, so once an attorney learns of a death or other ending event, they should stop acting.
What to do next
- Find the original document and read whether it states that it continues despite the donor's mental incompetence.
- Check how it was signed and witnessed against the requirements above.
- Check whether the named attorney is still alive, solvent and able to act, and whether a successor is named.
- Keep careful records of every transaction the attorney makes.
- If the document is unclear, or the donor's capacity at signing is in doubt, speak to a lawyer before acting on it.
Frequently asked questions
Can the family use a power of attorney that does not mention incompetence?
Under the Act, a power continues despite incompetence only if it states that it is to continue despite the donor's mental incompetence, along with the other signing requirements. If it lacks that statement, it is risky to assume it still works. A lawyer can review the document and explain your options.
What does mental incompetence mean?
In The Powers of Attorney Act it means the inability of a person to manage their affairs. The Act uses this definition for the power of attorney, so it is different from the test used for health care decisions.
Does a power of attorney continue after the donor dies?
No. It terminates when the donor dies. An attorney who did not know of the death and could not reasonably have known is protected from liability for acting afterward.
What if the first attorney can no longer act?
If the document names several attorneys to act successively, and does not say which order applies, they act in the order named. An attorney's own death, bankruptcy or mental incompetence ends their power.
Sources
- The Powers of Attorney Act, C.C.S.M. c. P97 — web2.gov.mb.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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