Power of Attorney and Land in Nova Scotia: Registering It

You may be holding a power of attorney for a parent, spouse or friend, and a piece of land needs to be sold, mortgaged or dealt with. It is natural to ask whether the document has to be registered first, and what the registry will want to see.

This article explains what an enduring power of attorney is, when it stops, and how it fits with land. The exact registration steps depend on the transaction and on what the registry requires, so you should confirm those before you sign or file anything.

This article covers the law of Nova Scotia.

What an enduring power of attorney is

A power of attorney becomes an enduring power of attorney when it contains an enduring clause, which means it continues despite the donor's incapacity. Powers of attorney generally cover estates and financial matters, while a personal directive deals only with personal care decisions such as health care, shelter and safety.

That difference matters for land. Selling or mortgaging a house is a financial matter, so it is the power of attorney, not a personal directive, that would normally be relevant.

Does it have to be registered?

There is no single answer that fits every situation. Whether a power of attorney must be registered, and what the registry will accept, depends on the land transaction and on the registry's own requirements at the time. A lawyer handling the land transfer will usually check this before the closing date.

Do not assume that a document signed years ago will be accepted as it is. Ask the lawyer, or the registry office, what they need to see before you commit to a sale date.

When the authority stops

A power of attorney 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. An attorney cannot use it to deal with land after the donor has died.

After a death, land in the deceased's name generally needs a grant, which is filed with the Land Registration Office when the land is transferred. Property registered solely in the deceased's name cannot be transferred to beneficiaries without court approval, and the Probate Court gives the executor the authority to transfer it. Land held as a joint tenant is an exception, because it passes by survivorship without a grant.

Concerns about how an attorney is acting

The Public Trustee does not supervise attorneys. Concerns go to the Supreme Court under the Powers of Attorney Act. If you are worried about how someone is using a power of attorney, speak to a lawyer promptly rather than waiting.

If you are the attorney, keep clear records of what you do. Good records protect you and make any later review of your actions much simpler.

What to do next

• Find the original power of attorney and check that it contains an enduring clause if the donor may be incapable.
• Confirm the donor is still alive and has not ended the document.
• Ask a lawyer or the registry office what the land transaction requires before you sign.
• Keep copies of everything you sign and every account of money you handle.
• If the donor has died, speak to the executor about the Probate Court process instead of acting under the power of attorney.

Frequently asked questions