What Is an Enduring Power of Attorney in Nova Scotia?

Many people hear the phrase enduring power of attorney when a parent's health starts to decline, or when they sit down to plan ahead. It sounds technical, but the idea is simple: someone you trust can handle your money and property if you can no longer do it yourself.

This article explains what makes a power of attorney enduring in Nova Scotia, how it differs from an ordinary one, when it stops, and where to turn if there is a concern. Details such as signing and witnessing rules are worth confirming with a lawyer.

This article covers the law of Nova Scotia.

What a power of attorney does

A power of attorney is a document in which one person, often called the donor, gives another person, the attorney, authority to act for them. In Nova Scotia, powers of attorney generally cover estates and financial matters, not health care decisions.

In plain terms, that means the attorney deals with the donor's money and property. Personal care choices such as health care and shelter belong to a different document, called a personal directive.

What makes it enduring

A power of attorney becomes an enduring power of attorney when it contains an enduring clause. That clause says the document continues to work despite the donor's incapacity.

The difference matters most when someone's health changes. An ordinary power of attorney without that clause is the kind that does not carry on once the donor can no longer manage. An enduring one is meant to keep working at exactly the point when the donor most needs help.

• Ordinary power of attorney: no enduring clause, so it is not designed to continue through incapacity.
• Enduring power of attorney: contains an enduring clause and continues despite incapacity.

Because the clause is what makes the difference, it is worth reading the document itself rather than relying on the title on the cover. A document called a power of attorney may or may not contain one. If you are unsure, a lawyer can read it with you.

When it ends

An enduring power of attorney ends in a few set ways. It ends when the adult dies, when the adult regains capacity and ends it, or when a court appoints an estate representative under the Adult Capacity and Decision-making Act.

Death is an important point for families. Once the donor dies, the attorney's authority is over, and the executor named in the will takes over the estate. The executor's authority to deal with property registered only in the deceased's name comes from the Probate Court.

Some asset holders, such as banks, investment companies or insurers, may ask for probate to prove an executor's authority, and that request is usually made only for assets in the deceased's sole name. Whether this applies to you depends on the asset, so it is worth confirming.

Oversight and concerns

Many people assume a government office watches over attorneys. The Public Trustee does not supervise attorneys. Concerns about how an attorney is acting are taken to the Supreme Court under the Powers of Attorney Act.

Because there is no routine supervision, choosing the attorney carefully matters. Family members who are worried about spending or missing records may want to speak with a lawyer about what options are available. Keeping clear records and talking openly with family can also make worries easier to settle early.

How a personal directive fits alongside

An enduring power of attorney does not make health care decisions. That job belongs to a personal directive, which deals only with personal care decisions such as health care, shelter and safety. A directive is in effect only when the maker is alive and incapable of making the decision.

A personal directive must be written, dated, signed and witnessed by an adult. The person named to make decisions, called the delegate, must be at least 19 unless they are the maker's spouse. A person ceases to be a minor at nineteen. The delegate, the delegate's spouse, and anyone who signs for the maker may not act as a witness.

If there is no delegate, or no directive that applies, a statutory hierarchy of decision-makers applies, with the Public Trustee last. Naming someone in advance means you do not have to rely on that list.

What to do next

• Decide who you trust to handle your finances, and whether they are willing to take on the role.
• Ask whether the document you have or want includes an enduring clause.
• Keep a separate personal directive in mind for health and personal care decisions.
• Check that anyone you name to make personal care decisions is at least 19, unless they are your spouse.
• Tell your family where the documents are kept.
• If you are helping a parent, check what document already exists before anything is signed.
• Speak with a lawyer about signing and witnessing requirements, which should be confirmed for your situation.

Frequently asked questions