When Does an Enduring Power of Attorney End in Nova Scotia?

Many families assume that the person holding a power of attorney can keep paying bills and moving money after the adult has died. Others assume the document lasts forever once it is signed. Neither is quite right, and the confusion can cause real problems at a hard time.

This article explains what makes a power of attorney enduring, the ways it ends, and what generally happens to the adult's property once they die. It also covers where concerns about an attorney go, and how a personal directive differs. Your own documents and facts matter, so a lawyer can confirm how this applies to you.

This article covers the law of Nova Scotia.

What makes a power of attorney enduring

A power of attorney lets one adult, the donor, give another person, the attorney, authority over money and property matters. Powers of attorney generally cover estates and financial matters.

A power of attorney becomes an enduring power of attorney when it contains an enduring clause. That clause means it continues despite the donor's incapacity. Without it, the usual worry is that the authority would stop just when the donor needs help most.

The three ways it ends

Being enduring does not mean it lasts forever. An enduring power of attorney ends in these situations:

• The adult dies.
• The adult regains capacity and ends it.
• A court appoints an estate representative under the Adult Capacity and Decision-making Act.

If the donor recovers, the document does not automatically carry on against their wishes. Once they have capacity again, they can end it themselves. If a court appoints a representative for the adult's estate, that appointment also ends the power of attorney.

What happens when the adult dies

Death ends the attorney's authority. From then on, the personal representative, usually the executor named in the will, represents the deceased for real property as well as personal property. The personal representative holds land as trustee for the people entitled to it.

Property registered only in the deceased's name generally cannot be transferred to beneficiaries without court approval. The Probate Court gives the executor the legal authority to transfer it out of the estate. A grant is generally required to sell or transfer land in the deceased's name.

There are exceptions. Land held as a joint tenant passes by survivorship without a grant. For assets with a named beneficiary or joint owner, probate may be needed only if the bank, insurer or other holder asks for proof of authority, and that request is usually made only for sole-name assets.

• Stop using the power of attorney for new transactions once the adult has died.
• Keep records of what you did as attorney while the adult was alive.
• Find the will and contact the named executor.
• Ask each bank or institution what it needs before it deals with the estate.

Concerns about an attorney

The Public Trustee does not supervise attorneys. If you have concerns about how an attorney is acting, they go to the Supreme Court under the Powers of Attorney Act.

Good records help anyone who later needs to understand what happened. After death, the personal representative must keep accurate records of all property and debts of the estate. Questions about an attorney's past handling of money are best raised early with a lawyer.

A personal directive is a separate document

A personal directive deals only with personal care decisions, such as health care, shelter and safety. It does not cover money. A directive is in effect only when the maker is alive and incapable of making the decision.

What to do next

If you are an attorney, or a family member of one, the practical steps depend on whether the adult is alive, has regained capacity, or has died. Rules on how these documents are signed and changed depend on the specific document, so a lawyer can confirm them.

• Locate the power of attorney and check whether it has an enduring clause.
• Note whether the adult is alive, has capacity, or has had an estate representative appointed.
• If the adult has died, contact the executor and the Registrar of Probate for the district about the estate.
• Keep every record and receipt from your time acting.
• Speak with a lawyer if there is a dispute or a concern about an attorney.

Frequently asked questions