Power of Attorney
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You'll find more answers to your questions about Powers of Attorney in 'It's in you hands: Legal Information for Seniors and their families'.
Q - What is a power of attorney?
A - A power of attorney is a legal document that lets you give another person authority to act on your behalf. If you are giving someone the authority to act on your behalf, you are called the donor. If you are the person receiving the authority, you are called the attorney (even if you are not a lawyer).
Giving someone a power of attorney does not limit you from acting on your own behalf. You still have control of your financial affairs and are free to deal with your property, money, and investments.
Q- What is an enduring power of attorney?
A- An enduring power of attorney is one that specifically provides for the power to remain in force if the donor becomes mentally incompetent (loses legal capacity).
Q - When would I need a power of attorney?
A - You might need a Power of Attorney because you are ill or physically infirm, or because you will be travelling or working away from home for a while and need someone to look after your affairs while you are away or for some other reason you are not able to deal with your affairs. As well, accidents happen every day that result in permanent or temporary incapacity.
Q- When is it too late to give a power of attorney?
A - It is too late to give a power of attorney if you are not mentally competent. Competency is sometimes an issue where the person wishing to give a power of attorney is suffering from progressive dementia. In this situation, it may be necessary to get a medical opinion as to whether the person is competent.
Q - Who can be my attorney?
A - Anyone who is at least 19 years old and who is mentally competent can be your attorney. You should choose someone you trust and who will carry out your wishes.
If you do not wish to give a relative or friend power of attorney, you can appoint a lawyer or trust company. Also, depending on the circumstances, the Office of the Public Trustee may agree to act as your attorney. The Public Trustee is an official appointed by the provincial government who manages the affairs of persons who, for one reason or another, are unable to manage their own affairs. (For more information, see the section on the Public Trustee in our publication 'It's In Your Hands: Legal Information for Seniors and their families".)
Q - What are the legal requirements for a power of attorney?
A - The donor and the attorney must both be at least 19 years old and must be mentally competent. They must be able to understand what it means to give and receive a power of attorney.
The power of attorney must be in writing and signed by the donor. It is wise to put it under seal because some purposes for which the power may be used require it to be under seal. Sealing means that a red seal (available from office supply stores) is attached to the document opposite the donors signature.
Often, the donors signature is witnessed by another person. This is not a legal requirement but is commonly done.
An enduring power of attorney, however, must be witnessed. The witness must be at least 19 years old and cannot be the attorney or the attorneys spouse.
A power of attorney does not have to be signed by the attorney. However, if the attorney is to have access to a bank account, the bank will need the attorneys signature for its file.
If you are unable to sign the Power of Attorney, you can place your mark on it. A mark is a cross or other symbol used in place of a signature. A witness should sign a statement saying that the mark was made by you. This statement is called an affidavit.
If you are visually impaired, you should have the contents of the document read to you before you sign it or place your mark. A witness must sign an affidavit that the document was read to and understood by you before you sign it or place your mark on it.
Affidavits must be sworn before either a commissioner for oaths or a notary public.
Q- Where can I find a commissioner for oaths or a notary public?
A - All lawyers are notaries public and commissioners for oaths. In addition, some people who are not lawyers are also commissioners for oaths. You can usually find commissioners in the local provincial court clerks office, in the Town or City clerks office, in government offices, hospitals, and homes for special care.
Q - What powers will my attorney have?
A - You choose what powers to give your attorney.
A general power of attorney gives the attorney power to act in every capacity for the donor.
A specific power of attorney gives the attorney power to carry out specific acts only, such as the power to sell land or access a bank account.
You must be sure that a specific power of attorney gives your attorney enough power to complete the task. For example, a power to purchase a piece of land should include the power to sign all documents necessary to complete the purchase.
Q- Do I need a lawyer?
A - No, but a power of attorney is an important legal document and it is a good idea to have a lawyer draw it up for you. A lawyer can explain the legal consequences of giving a power of attorney. The lawyer can tell you whether the terms in your power of attorney will allow the attorney to do the task you require. Also, because each specific power of attorney is unique, it is wise to have a lawyer write it for you.
Q - Can I buy a power of attorney form?
A - Some office supply stores may have forms for general powers of attorney. There are also books that provide examples of forms.
There is no standard form for a specific power of attorney because the wording will depend on what powers you want to give your attorney. You or your lawyer will have to draw up the form to fit your specific needs. You will usually need a special form from your bank if you want your attorney to access your bank account.
Q - How much will it cost?
A - A general power of attorney form from an office supply store costs a few dollars. Banks do not charge a separate fee for their power of attorney forms.
Lawyers fees will vary depending on how long it takes to draw up the power and the number of times the lawyer meets with you. You should ask the lawyer about his or her charges.
Your attorney may have out-of-pocket expenses, such as for postage and telephone.
If your attorney is a lawyer and you ask him or her to do work related to being a lawyer such as purchasing property or drawing up a will, he or she may charge for doing these tasks.
The Public Trustee and trust companies charge fees for acting as your attorney. Fees are based on the value of your estate and your income.
A friend or relative is not entitled to any fee unless there is an agreement between the two of you for payment. In that case, you should include the terms of payment in the Power of Attorney document. Often a family member or a friend acts as an attorney without payment.
Q - Can my attorney use my bank account?
A - Yes, if you give him or her the authority to do so. Banks and other financial institutions usually have their own power of attorney forms. Your bank will tell you if they have special forms to fill out and procedures to follow.
The bank form may limit the attorneys powers to deal with particular accounts or it might include power to deal with investments and safety deposit boxes held by you. You should discuss your needs with bank staff.
Usually the bank form can only be used to cover dealings with that bank. It may not be used to deal with your affairs in general or to deal with other banks.
Be sure to read the form carefully before you sign it. If you do not understand any of the terms, you should talk to the bank manager and to your lawyer. The bank will also need the attorneys signature for their files.
Q - Can a power of attorney be used to buy and sell land?
A - Yes, if you give him or her the authority. The power of attorney must then also be registered at the Land Registration Office for the area where the land is situated. Each area has its own registry. Phone numbers are listed in the blue Government pages of the phone book under Land Registration or visit www.servicens.ca/land and click on property on-line.
The Land Registration Office currently charges a registration fee of $83.51 for the first page, plus $1 for each additional page. Fees change from time to time. You can contact staff at the Land Registration Office for information on fees.
If your power of attorney allows the sale or purchase of land, it must have an affidavit attached to it before it will be accepted for registration.
Land transactions done with a power of attorney are not valid until the power is registered.
Q -What happens if I become mentally incompetent?
A -If you become mentally incompetent, the power becomes invalid unless you have an enduring power of attorney. An enduring power of attorney says that you wish the power to continue even if you become mentally incompetent.
If you do not have an enduring power of attorney and you become mentally incompetent, a guardian may have to be appointed by the court to handle your affairs.
If you have an ordinary power of attorney you may wish to replace it with an enduring power of attorney to enable your attorney to continue to act should you become mentally incompetent.
Q - Can my attorney consent to medical treatment for me?
A -Yes, if you give him or her the authority to do so. The Nova Scotia Personal Directives Act also lets you give a person authority to consent to medical treatment on your behalf if you become mentally or physically incapable of giving consent. The person you authorize to consent on your behalf is generally called your delegate. The consent can be included in your Enduring Power of Attorney or it can be a separate document called a personal directive.
If you decide to include medical consent, your Power of Attorney must be in writing, signed by you, and witnessed. The witness cannot be the delegate or the delegate's spouse. Both you and your delegate must be at least 19 years of age and must be mentally competent.
Q - How does a power of attorney end?
A - A power of attorney can end in any of these ways:
a) Notice by the donor: You, the donor, may cancel a power of attorney by giving notice to the attorney. The notice must be in writing, dated, and signed by you. You should also:
write organizations and companies who deal with the attorney telling them that the power has been cancelled.
Ask the attorney and anyone else who has a copy of the power of attorney to return it to you. However, banks and other organizations may need to keep the document for their files. Give written notice of cancellation to the Land Registration Office if the power of attorney is registered.
b) Notice by the attorney: Your attorney can give you notice that he or she no longer wants to act as attorney. You should notify the bank and others that the power has been cancelled.
c) Mental incompetence: If you become mentally incompetent, the power of attorney is automatically cancelled unless it is an enduring power of attorney.
If the attorney becomes mentally incompetent, the power is automatically cancelled, unless you have named a back-up attorney.
However, a person who deals in good faith with the attorney and who does not know that the power has been cancelled can rely on the power of attorney.
In some circumstances, where the Public Trustee is acting for a person who becomes mentally incompetent, the Trustee will continue to act on behalf of that person.
d) Death: If either you die the power of attorney is cancelled. If the attorney dies the power of attorney is cancelled unless you have named a back-up attorney.
If the Public Trustee is acting on behalf of a donor who dies, the Trustee will continue to act until a court appoints someone to administer the estate.
e) Bankruptcy: If you become bankrupt, the Trustee in Bankruptcy takes over all your financial affairs and the power of attorney is cancelled.
If the attorney becomes bankrupt, the power of attorney is not automatically cancelled. The power is cancelled only if the bankruptcy makes the attorney unfit to carry out his or her duties.
f) Time: Where a specific power of attorney is given to complete a specific task, for example to purchase a house, authority under the power of attorney ends when the task is completed.
If a specific power of attorney authorizes the attorney to act on an ongoing basis, the power continues until it is cancelled in one of the ways outlined above.
A general power of attorney may continue indefinitely or it may be for a specific time.
Q - Do powers of attorney have to be registered?
A - Registration is only required when a power of attorney allows dealings in land. Such a power must be registered at the Land Registration Office.
Q - What are the risks in giving a power of attorney?
A -Most attorneys are honest and do their best to manage your affairs in accordance with your wishes. Sometimes an attorney might use the donors property for the attorneys own benefit. Or, the attorney may deal with property in a manner that goes against the donors wishes because the attorney believes that he or she knows whats in the donors best interests.
Depending on the terms of the power, your attorney may be able to withdraw cash from your bank accounts, buy and sell investments on your behalf, deal with your property, and sign contracts on your behalf. If your attorney has power to deal with your bank accounts and investments, your bank will not usually tell you that cash is being withdrawn from your account. Some banks may have a policy to tell you if large sums are being withdrawn.
You should make sure you know what your power of attorney is being used for.
Q - What can I do to prevent misuse of a Power of Attorney?
A - Choose your attorney carefully. He or she must be someone you can trust and who will respect your wishes. You might appoint two attorneys to act jointly. You should always name a back-up attorney in your Power of Attorney.
Keep informed about your affairs. Do not hand over all responsibility to your attorney.
Have your attorney give you regular updates on how he or she is managing your affairs.
If you have a lot of savings, property or investments you might consider appointing a lawyer or trust company to act on your behalf. Look carefully into the costs before you decide who to appoint.
Give a specific rather than a general power of attorney unless your circumstances require a general power.
Check bank statements and cancelled cheques carefully. Place a limit on the amount that your attorney can withdraw without additional authority from you.
If you have investments arrange for your investment dealer to keep you informed.
Make an inventory of your property, jewellery, savings, furnishings and investments and keep it up to date.
Q - What can I do if my attorney misuses the Power of Attorney?
A - The following options may be open to you depending on your circumstances and your relationship with your attorney. At the very least you should talk over your concerns with your lawyer or someone else you trust.
If you believe that your attorney is abusing his or position you can cancel the power. Ask your attorney for an account of how he or she has managed your affairs.
If your attorney is using your property or money for his own benefit without your consent you should talk with a lawyer and the police. It is a criminal offence to misuse a power of attorney.
If you have an enduring power of attorney and later become incompetent your attorney will be required to account for how he or she has managed your property.
Anyone who believes that the attorney is abusing his or her power may make an application to the Nova Scotia Supreme Court. The person should first talk to a lawyer. The court can order the attorney to give accounts to the Public Trustee. The court may also remove the attorney and appoint someone else to manage your affairs. An attorney can also voluntarily give an accounting to the Public Trustee.
Under the Adult Protection Act a judge may, where an adult is in need of protection, inform the Public Trustee where the adults attorney or guardian is neglecting the adults property or dealing with it in a way that is not in his or her best interests.