- When the donor signs, the attorney must be an adult, mentally competent and not an undischarged bankrupt.
- You can name several attorneys to act jointly or one after another.
- A paid attorney is held to a higher standard of care than an unpaid one.
Choosing an attorney is one of the biggest decisions in planning for the future. This person may handle your money and property if you cannot, so the legal rules on who is eligible are worth understanding.
This article explains who can act under Manitoba's The Powers of Attorney Act, how joint and successive attorneys work, and what changes if the attorney is paid. It is general information, not advice about your situation.
This article covers the law of Manitoba.
The basic eligibility rules
In the Act, the donor is the person who gives the power and the attorney is the person authorized to act. At the time the donor signs, the individual named as attorney must be an adult, must be mentally competent and must not be an undischarged bankrupt.
- Adult: a minor cannot be named.
- Mentally competent: the person must be able to manage their affairs, which is how the Act defines the opposite condition.
- Not an undischarged bankrupt.
The Act's test applies at the time of signing. Whether a person is a good choice in practice, for example their honesty, availability and skill with money, is a separate question only you can weigh.
Under the Act, mental incompetence means the inability of a person to manage their affairs. Because eligibility is measured when the donor signs, a later change is dealt with separately: if the attorney later becomes mentally incompetent, the power of attorney ends.
Naming more than one attorney
A donor may appoint any number of persons to act jointly or successively. If the document does not say which, they act in the order named.
Joint attorneys act by majority, and unless the document says otherwise the first-named attorney decides a deadlock. If you name two attorneys, think about whether you want one person to have that deciding role. A lawyer can help you write a different rule.
| Arrangement | How it works |
|---|---|
| Joint attorneys | Act together, by majority |
| Successive attorneys | One steps in after another, in the order named |
| Document is silent | Attorneys act in the order named |
Naming people jointly means they have to work together on decisions, while naming them successively means a backup is ready if the first person cannot act. Which approach suits you depends on your family and your finances, so it is worth talking it through with a lawyer.
Paid and professional attorneys
An attorney who is not compensated must use the judgment of a prudent, discreet and intelligent person managing their own affairs. A compensated attorney must meet the standard of a prudent professional managing other people's property.
So choosing a paid professional does not lower the bar; it raises it. Whether payment is allowed, and how much, depends on the document and other law, so confirm with a lawyer before setting it up.
Whatever the arrangement, it helps to talk openly with your attorney about what you expect from them, and to keep the document somewhere your attorney can find it when it is needed.
When an attorney stops being able to act
A power of attorney ends if the attorney dies, becomes bankrupt or becomes mentally incompetent, and it terminates when the donor dies. This is a good reason to name a backup attorney in the document, using the successive approach.
An attorney is not liable to the donor or the estate for acting after termination, including death, if they did not know of it and with reasonable care could not have known. Acts in favour of a person who did not know of the termination also remain valid.
If the power is meant to continue when the donor can no longer manage their affairs, it must be in writing, signed and witnessed as the Act requires, and state that it continues despite mental incompetence.
An enduring power is also void if the donor could not understand its nature and effect when signing. That makes the donor's own understanding at the time of signing as important as the attorney's eligibility.
What to do next
Before you meet a lawyer, it helps to have a few names in mind and to know how you would like decisions to be made if you named more than one person. Having these thoughts ready makes the conversation shorter and more useful.
- List possible attorneys and confirm each is an adult and not an undischarged bankrupt.
- Talk with each person about whether they are willing and able to act.
- Decide whether to name joint attorneys or a backup, and what happens in a deadlock.
- Decide whether any attorney will be paid and discuss the standard they must meet.
- Have a lawyer review the document so the enduring wording and witnessing are correct.
Frequently asked questions
Can a child under 18 be my attorney?
No. At the time the donor signs, the individual must be an adult.
Can someone who is bankrupt be my attorney?
Not if they are an undischarged bankrupt when you sign. A power of attorney also ends if the attorney becomes bankrupt.
Can I name two attorneys?
Yes. You may appoint any number of persons to act jointly or successively. Joint attorneys act by majority, and unless the document says otherwise the first-named attorney decides a deadlock.
Is a family member held to a lower standard than a professional?
The Act sets the standard by whether the attorney is paid, not by their relationship to you. An unpaid attorney must act as a prudent, discreet and intelligent person would for their own affairs, and a paid attorney as a prudent professional would for others.
Sources
- The Powers of Attorney Act, C.C.S.M. c. P97 — web2.gov.mb.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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