What Is an Enduring Power of Attorney in Saskatchewan?

If you have just heard the term enduring power of attorney, you are probably planning ahead for a parent, a spouse or yourself, or you have been asked to act for someone. The words sound technical, but the idea is simple: one person gives another the authority to make decisions for them.

This article explains in plain language what an enduring power of attorney is in Saskatchewan, what an attorney can be given authority to do, who can and cannot act, and how it differs from other documents people often mix it up with.

This article covers the law of Saskatchewan.

What an enduring power of attorney is

A power of attorney is a document in which one person, the grantor, gives another person, the attorney, authority to act for them. An attorney here is not necessarily a lawyer. It is simply the person you choose.

An enduring power of attorney is one that is meant to continue in effect even if the grantor becomes incapacitated. That is the feature that gives it the name, and it is why people use it: it is designed to keep working at the very time the grantor can no longer manage things alone.

What it can cover

Enduring powers of attorney come in several forms. They can be immediate, taking effect when signed, or contingent (sometimes called springing), taking effect only when a stated event happens. They can be personal, property or both, and general or limited.

• Immediate or contingent: when the authority begins.
• Personal, property or both: the kinds of decisions the attorney can make.
• General or limited: whether the authority is broad or restricted to particular matters.

The exact wording of the document decides what the attorney may do, so the drafting matters. If more than one attorney is named, they act jointly unless the document says otherwise.

Making it valid and choosing an attorney

The grantor and the attorney must both be 18 or older and mentally competent. The document must be in writing, dated and signed, and witnessed either by a lawyer (who gives legal advice and a witness certificate) or by two competent adults who are not the attorney or family of the grantor or attorney, with two witness certificates.

Some people cannot act as attorney. These include an undischarged bankrupt (for a property attorney), a person convicted in the last 10 years of a Criminal Code offence involving violence, theft, fraud or breach of trust (unless pardoned, or the grantor is capable and was told and consented), and someone paid to provide the grantor's personal or health care. Pick someone trustworthy and willing, and consider naming a back-up.

How it differs from other documents

Enduring power of attorney versus a general power of attorney: the enduring version is defined by its ability to continue if the grantor becomes incapacitated. A power of attorney without that feature is a different document, and whether it survives incapacity depends on its wording and the law, so confirm this with a lawyer before relying on one.

Enduring power of attorney versus a health care directive: a health care directive is a separate document dealing with health care wishes and decisions, with its own rules. Do not assume one document replaces the other; a lawyer can tell you which documents suit your situation.

Enduring power of attorney versus guardianship: when an adult can no longer grant a power of attorney, a court may be asked for guardianship or co-decision-making, which needs at least two assessments by qualified professionals. Less intrusive options, including a power of attorney if the adult can still grant one, are suggested first. Whether someone can grant a power of attorney is both a medical and a legal decision.

An enduring power of attorney is also different from a will and from the work of an executor, who handles an estate after death. They serve different stages of life.

What to do next

• Decide whether you need personal decisions, property decisions or both covered.
• Choose an attorney who meets the requirements, and talk with them first.
• Decide whether the authority should begin immediately or only on a stated event.
• Arrange proper witnessing, either by a lawyer or by two eligible adults.
• Do this while the grantor is clearly capable, because capacity to grant a power of attorney cannot be fixed later.
• Ask a lawyer how it fits with your other documents, including any health care directive.

Frequently asked questions