What Is an Enduring Power of Attorney in Manitoba?

If you are hearing the term enduring power of attorney for the first time, it usually comes up when someone is planning for a time when they may not be able to manage their own money or property. The word enduring is the key.

This article explains what an enduring power of attorney is under Manitoba's The Powers of Attorney Act, how it differs from an ordinary one, and what makes it valid. It is general information, not advice about your situation.

This article covers the law of Manitoba.

The basic terms

A power of attorney is a document where one person gives another authority to act for them. The Act calls the person who gives the power the donor, and the person authorized to act the attorney. An attorney here is not necessarily a lawyer.

The Act defines mental incompetence as the inability of a person to manage their affairs. That definition matters because it is the situation an enduring power is built to handle.

The Act also sets out who can act as an attorney. At the time the donor signs, the individual must be an adult, mentally competent and not an undischarged bankrupt. Whether a particular person is a good fit beyond those minimums depends on your circumstances.

What makes a power of attorney enduring

A power of attorney continues despite the donor's mental incompetence only if it meets four conditions.

• 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 meets these conditions is void if the donor could not understand its nature and effect when signing. This is why the donor's understanding at the time of signing is important, and why people sometimes seek legal help to document it.

Enduring compared with a general power

A power of attorney that does not include the required wording and signing steps is not enduring. The Act sets those steps as the test for continuing despite mental incompetence. A general power may still be useful for practical matters while the donor is capable, but you should not expect it to carry on once the donor can no longer manage their affairs.

What specific powers the attorney has depends on what the document says. Health care decisions are dealt with separately under The Health Care Directives Act, which has its own test for capacity.

Under that test, a person 16 or older is presumed capable absent evidence to the contrary, and capacity may exist for some treatments and not others. It is a different question from whether someone can manage their property.

Duties and limits for the attorney

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 standard of a prudent professional managing other people's property.

A donor may name more than one attorney, acting jointly or successively. A power of attorney ends if the attorney dies, becomes bankrupt or becomes mentally incompetent, and it terminates when the donor dies.

If the document does not say whether several attorneys act jointly or successively, they act in the order named. Joint attorneys act by majority, and absent a contrary provision the first-named attorney decides a deadlock. Because these defaults can surprise people, it helps to say clearly in the document how several attorneys are meant to work together.

If an attorney acts after the power has ended without knowing and without being able to know with reasonable care, they are not liable to the donor or the estate, and acts in favour of a person who did not know of the termination remain valid.

What to do next

• Ask whether any power of attorney you already have contains the wording that it continues despite mental incompetence.
• Check that the signing and witnessing steps were followed.
• Think about who is trustworthy and capable before naming an attorney.
• Talk to a lawyer if the document is old, unclear or being questioned.
• After a death, remember the power has ended. How the estate is then dealt with depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions