Wills and Estates Law

Generally, an estate is the assets a person owns when they die. 

Assets are anything worth money.  For example:

• house or condo
• any other land
• bank accounts
• investment accounts and GICs
• valuable jewelry
• valuable artwork
• other household and personal items
• car(s) and other vehicles.

Pets are also assets, as the law thinks of animals as personal property 

An estate typically excludes:

• assets with a named beneficiary. Here are some examples:
  • registered savings accounts that name someone to get the money directly, like RRSPs, RRIFs, and tax free savings accounts (TFSA)
  • pension plans
  • life insurance policies.
• property that the person who ided own jointly with someone else, with right of survivorship. For example, if spouses own their home as ‘joint tenants and not as tenants in common’, the home goes directly to the surviving spouse.

When a person dies, these types of assets are said to “pass outside the will”. For example, the bank or trust company transfers the RRSP or RRIF, or pays it out, to the named beneficiary.  This payment does not take into account tax consequences, which must be paid out of the assets that pass through the will. The same is true if there is life insurance that names a beneficiary, although typically there are no tax consequences for life insurance proceeds.  If the person who died named their estate as beneficiary instead of a person or charity, the money goes to their estate and would be distributed as they directed in their will. 

Assets share with a spouse or minor children go to the surviving owners.

Shared assets with anyone else, including adult children, are not automatically assumed to go the survivor owner. For jointly owned accounts the account may legally pass to the joint owner according to the financial institution paperwork, but the joint owner may then have a legal responsibility to share that account with other beneficiaries of the estate. 

If it is not clear what the person who died wanted to happen with shared assets, or if there is a dispute, the executor or administrator of an estate should get legal advice.

If a person owes debts when they die, like unpaid credit card bills and income tax, the executor or administrator of the estate must first pay those debts out of what is in the estate. Only what is left after all debts are paid may then be given out based on what the will directs or based on the rules that apply when a person dies without a will.

Secured debts (for example, a mortgage) and a surviving married spouse’s or registered domestic partner's interest in the matrimonial home have priority.

If the estate does not have enough assets to pay all the estate debts, the estate is called insolvent. Debts for an insolvent estate must be paid out of what is in the estate in the following order of priority:

• taxes owed to the Canada Revenue Agency
• funeral expenses including a reasonable headstone
• probate taxes and court fees
• executor’s commission and legal fees (treated equally)
• reasonable medical expenses in the last 30 days of the will-maker’s life
• all other debts.

The estate’s debts, including taxes, must be paid before assets are distributed to beneficiaries.  If a personal representative distributes assets before all debts are paid,  they may be personally liable for those debts.

A person who makes a will is called a testator.  If you die without a will, you are said to die intestate.

Nova Scotia’s Probate Act uses the term personal representative to refer to both an executor and an administrator of an estate.

An executor is a person or corporation named in a valid will to carry out the terms of that will. 

An administrator is a person appointed to look after the estate of an individual who dies without a will – that is, a person who dies intestate, or who had a will but did not appoint an executor.  There is a list in the Probate Act of people who are entitled to apply to court to administer an estate.  A surviving married spouse and adult children living in Nova Scotia are at the top of the list, followed by adults who live in Nova Scotia and who are entitled to a share of the estate under the Intestate Succession Act.  The Intestate Succession Act is the provincial law that applies when someone dies without a will.

Probate is a legal process that establishes that a will is the valid last will of the person who died. It is also the process that governs management and distribution of an estate, whether or not there is a will. A grant of probate or administration is a document from the Probate Court that gives a personal representative legal authority to deal with the estate.

Nova Scotia’s Probate Act and regulations outline the rules for probating an estate.

No.  If you do not want to be Executor tell your family member or friend at the time the will is being written. 

If the person who wrote the will has died, you are still allowed to renounce, which means resign or step down, if you do not wish to act as the Executor.  To renounce you would need to contact the Probate Court and fill out a form giving up (renouncing) your right to be Executor, and confirming that you have not intermeddled in the estate.  Intermeddled basically means interfering with the estate, or doing things that show you've taken on the job of managing the estate.  If you do not wish to be Executor it is best to step down before you take any steps to deal with the estate.

You do not need any specific skills or experience to be an Executor, although it helps if you have some business knowledge.  It does require time and attention.  In some cases, for example - a will that involves a trust fund for children, it can include responsibilities that may last for years.  Also, as an executor you can be held legally responsible for any errors or omissions you make in dealing with the estate. 

In some situations, an executor’s job is straightforward and relatively simple.  In other cases it can be very complex.  It depends on the size of the estate and other factors, including:

• how many beneficiaries there are;
• whether the testator owned a business;
• whether the testator had investments and debts;
• whether someone is challenging the will;
• whether the testator established trusts in their will.

You are not required to hire a lawyer. You are allowed to go to Probate Court and file the necessary papers without a lawyer.   However, you should consider the complexity and size of the estate when deciding if you are able to handle the interpretation and distribution yourself.  You may be held personally liable if the duties are not carried out properly. Go here for ways to find a lawyer, if you decide to hire one.

The Probate Court provides information, including check lists and forms, for personal representatives who are dealing with an estate without a lawyer. Visit courts.ns.ca and look under ‘Probate Court’ and ‘represent yourself’, or look under ‘courts’ in the government section of the telephone book for probate court locations.

A personal representative’s duties will vary depending on the complexity of the estate.  As an estate’s personal representative you should keep very accurate and detailed records. If you are concerned about whether you are fulfilling all your duties as personal representative, you should speak with a lawyer. 

Some of the duties you may have as an estate’s personal representative are listed below:

• You may play a role in funeral arrangements, depending on the deceased’s wishes and those of their family.   You may be able to take funeral bills to the deceased’s bank and have a cheque drawn on their account to pay them, as long as there is enough money in the account;
• Open an estate bank account;
• Take steps to protect the estate’s assets.  For example, make sure assets are insured, change the locks on an apartment or house, secure valuables in a safety deposit box or other suitable storage;
• Check that proper insurance is still in effect as some insurance policies are automatically invalidated if a residence is left vacant; 
• Make an inventory of all estate assets and debts;
• Make sure estate debts are paid first, out of what is in the estate;
• Cancel the deceased’s charge accounts and subscriptions, and contact Canada Post to have the deceased’s mail redirected;
• Contact the Canada Pension Plan and the deceased’s employer, in case there are benefits which should be part of the estate.  For Canada Pension, this may include a death benefit, survivor’s pension, and/or children’s benefit;
• Apply to Probate Court for a grant of probate or administration.  Probate is generally required before a personal representative will be allowed to deal with the estate’s assets, particularly if there is land or a house that is only in the deceased person’s name, and/or if financial institutions require it.  You should inquire directly with the financial institution involved as the practices of institutions differ; 
• Make sure that appropriate tax returns are filed, and that any income tax owed by the estate or the deceased person is paid.  Get a Clearance Certificate from the Canada Revenue Agency;
• After estate debts are paid and a clearance certificate obtained, distribute the estate assets according to the terms of the will or Intestate Succession Act if there is no will.

The Probate Act gives you:

• 20 days from the date of getting a grant to notify all persons entitled to share in the  distribution of the estate;
• 3 months from the date you get the grant to file an inventory of the estate with the Probate Court.  Items such as inexpensive personal clothing or anything jointly owned with another person don’t need to be included in the inventory.

Before the estate can be distributed to the beneficiaries, you must advertise in the Royal Gazette that the deceased’s estate is being probated, and that creditors who may have a claim on the estate should come forward.  This advertisement period lasts for 6 months. The Royal Gazette, Part 1, is Nova Scotia's official government record of proclamations and other required legal notices. For more information about the Royal Gazette, and fees for placing an estate notice, go to  gov.ns.ca/just/regulations/rg1/index.htm or call (902) 424-8575.

The estate’s debts, including taxes, must be paid before assets are distributed to beneficiaries.  If you distribute assets before all debts are paid, you may be personally liable for those debts.

Yes, there are circumstances under which the Probate Court may remove an estate’s personal representative and appoint another person in his or her place.  Under the new Probate Act the Court must be satisfied that a personal representative’s removal would be in the best interests of the persons interested in the estate.  The Act sets out specific reasons for removal, including if the personal representative:

1.    fails to comply with a court order;
2.    becomes insolvent or mentally incompetent;
3.    neglects to administer the estate;
4.    wastes the estate;
5.    is convicted of theft and/or fraud offences under the Criminal Code of Canada.

A Personal Representative may also apply to Probate Court on his or her own behalf to be allowed to step down from his or her duties.

The Probate Court may allow you a commission of up to 5% of the value of the estate, unless the will states otherwise.  This is above and beyond any out-of-pocket expenses you may have had while carrying out your responsibilities.  The amount of the commission is based on the complexity of and work involved in probating the estate, the success of the estate under your management, as well as other factors.

Probate forms are available from your local Probate Court, listed under ‘Courts’ in the government pages of the telephone book, or visit www.courts.ns.ca for probate court locations and contact information.

For more information, contact:

• The Probate Court in each of Nova Scotiaís probate districts has information available to the public. You may obtain copies by visiting or by calling your local Probate Court office or by going to the Courts of Nova Scotia website, courts.ns.ca/self_rep/self_rep_kits.htm. The phone number for your local Probate Court office should be listed in the blue government pages of your phone book under "Courts". Office location information is also available on the Courts of Nova Scotia website.
  
  The information available from the Probate Court includes:
  -The Probate Act - Questions and answers
  -Dealing with an estate 
  -Passing the accounts of an estate in Probate Court - checklist
  -How to prepare the final account of the personal representative

• A lawyer in private practice who deals with probate, wills & estates
• Legal Information Society of Nova Scotia for free legal information
• Notify the federal government of a death
• Canada Revenue Agency (tax issues) - 'What to do following a death'
• Nova Scotia Public Trustee Deceased Estate Services: novascotia.ca/just/pto/services_ea.asp
• Nova Scotia Government publication (2017): 'After the loss of a loved one: a guide to legal and emotional concerns (pdf)
• Vital Statistics Nova Scotia (death certificates): novascotia.ca/sns/access/vitalstats/death.asp
• Department of Community Services Nova Scotia (funeral expenses):  http://novascotia.ca/coms/department/contact/
• Grief counselling and support: ask your healthcare provider, funeral director, or Canadian Mental Health Association-Nova Scotia.  You can also call 211 or go to www.ns.211.ca/ to find grief support services near you

Some people want to plan their own funeral before they die. If you do this, you will save your family some trouble at a difficult time. If you also pay for your funeral ahead of time, you may save yourself or your family some money. Funeral costs rise each year, and paying ahead of time locks in the cost.

If you plan your funeral, you should let people know. Speak with your executor and family members to make sure they know what you want. Your executor is legally responsible to make your funeral arrangements, so this discussion is especially important if your executor is not a family member or there are different expectations among family members about how best to honour you. Tell them about any arrangements you have made. Leave any details or contract for the funeral where they can find it and read it right after your death.

It’s not wise to only include burial wishes in your will. Your executor might not read your will until after your funeral and burial, so they might not see your instructions before the funeral and burial happen. Also, when you put your burial instructions in a will, they are not legally binding. They are just considered to be an expression of your wishes.

It is a good idea to write a letter to tell your executor and family about your wishes and what arrangements you have made. For example, you can:

• leave instructions about whether you wish to be buried or cremated
• say if you have wishes for your ashes
• tell them what kind of service or event you would like after you die. Do you want to have a funeral, a wake, a memorial service, or a celebration of life or more than one of these? Or none of them?
• say if you would like to follow practices from your culture or faith.

Although this is sometimes done in books, TV, and movies, there is no legal requirement that your will be read publicly.

In Nova Scotia, a funeral home is the best place to go for help planning your funeral. You can pre-purchase your funeral from a funeral home. Some funeral homes will also register your wishes for free.

They will give you a small card that says you have registered your wishes at that funeral home. Often, a funeral home will want you to pay for planning your funeral when you make your plans. And you can buy a funeral plan from a funeral home. They call it pre-planning or pre-arranging the funeral.

If you are thinking about paying for your funeral before you die, make sure you get what you want. Take care to not pay for things you don’t need. Funeral homes offer many products and services. Many are not needed, and some can be quite expensive.

Take these steps to protect yourself:

• Get at least two quotes.
• Find out what is included in the basic price and what costs are extra.
• Think about whether the extras fit your budget and whether you need them.

You can also arrange ahead of time for a cemetery lot, grave liner, vault, urn, and memorial (including installation). And you can arrange the opening and closing of gravesites.

In Nova Scotia, any funeral home, crematorium, or company providing funeral merchandise or services to the public must have a funeral home licence from the Nova Scotia government.

Nova Scotia law says how a funeral home, funeral director, embalmer, and apprentice embalmer can advertise. For example, funeral goods and services cannot be sold over the phone, door-to-door, or in a hospital, nursing home, senior citizen’s home, or home for special care.

When you buy pre-planned funeral arrangements, the funeral home must give you a copy of your contract. They must keep the money you pay for your arrangements in a trust account. They can use it only for your funeral.

They must show the lowest-priced goods available in any display of funeral merchandise.

The Canada Pension Plan (CPP) gives a one-time death benefit to the executor or next-of-kin of a CPP contributor who has died. The highest amount is $2,500. Service Canada takes about six to twelve to pay after the executor or next-of-kin applies for this benefit. For more information, call 1-800-277-9914 or visit https://www.canada.ca/en/services/benefits/publicpensions/cpp/cpp-death-benefit.html.

In Nova Scotia, the Department of Opportunities and Social Development may help with funeral costs if your spouse or next-of-kin cannot afford to pay for a funeral. Your next-of-kin must also apply for the CPP death benefit, which will be used first to pay the cost of the funeral. For more information, contact your local DCS office or visit https://beta.novascotia.ca/government/community-services

The Veterans Affairs Canada Funeral and Burial Program makes sure that eligible Veterans receive dignified funeral and burial services. The Last Post Fund (LPF) is a non-profit organization which delivers the program on behalf of Veterans Affairs Canada. To be eligible for the program, Veterans must meet both military and financial criteria. For more information, visit www.lastpostfund.ca.

You can cancel a pre-arranged funeral plan or cemetery plan at any time. However, the seller may charge an administration fee and may keep the interest plus up to 10 percent of the money you paid. If you bought any cemetery or funeral goods, the funeral home must deliver those items to you or your family.

You cannot get a refund on a cemetery plot if you decide you don’t want to use it, but you can re-sell it to someone else.

Your executor may cancel a contract for a pre-paid funeral if you died in another province or country, or if you died under unusual circumstances that mean that the goods or services cannot be used when you die.

In Nova Scotia, you can choose between two main ways of being buried.

One way is to be buried in the ground. The body is placed in a casket and lowered into the ground. Some cemeteries require a liner of wood or concrete.

When you buy a plot in a cemetery, you have the right to visit it at reasonable times and the right to put a memorial on the plot. The cemetery’s contract with you will say what types of memorials or monuments you can use.

The second option is to be buried in a building called a mausoleum. This is more expensive than being buried in the ground.

When a person is cremated, both the body and the cremation container are burned completely. Funeral chapels and places that cremate remains prefer that the body be in a container that has a hard top, sides, and bottom, has handles, and will burn completely.

After cremation, a small amount of ash is left. If your family would like to keep the ash, they may. The crematorium or funeral home can give someone the ashes in a container. If your family wants to keep or to bury the ashes, you or they can buy or make an urn.

Some people want to scatter ashes in water or in the wild. The law in Nova Scotia does not stop this. However, do not scatter ashes near water that is used for drinking water. You can scatter ashes on land, but you must ask permission before you go on another person’s property.

Funeral homes will often embalm human remains so that the body looks better at the funeral. Embalming is an extra expense, so you should be clear if you do not want to pay for this.

In Nova Scotia, your body does not have to be embalmed if it will be buried or cremated within 72 hours (about three days) after death. Embalming is not done when a person dies of certain diseases that could be transmitted to other people.

Eco-friendly or “green” burial practices try to lower the effect on the environment of disposing of human remains. Several non-profits in Canada offer information about eco-friendly burial options, such as the Ecology Action Centre Green Burial Society.

Green burial options include

• not being embalmed or cremated
• allowing remains to decompose naturally
• not using varnish, glue, laminate, or metal when building coffins or caskets.

Green or eco-friendly burial options are not regulated by government. You must research funeral homes or cemeteries making these claims to be sure that their practices match your wishes. In Nova Scotia, some cemeteries have green burial sections.

The Nova Scotia law for organ and tissue donation changed on January 18 2021. The law says you are deemed to have agreed to donate your organs and tissues after you die. This is called ‘deemed consent’. If you do not want to donate your organs and tissues you can opt out. You can learn more, including how to opt out, at novascotia.ca/organtissuedonation. For information about what organ and tissue donation is and how it works go to www.nshealth.ca/legacy-life.

In Nova Scotia, you may donate your body to the Dalhousie University Human Body Donation Program or to the Maritime Brain Tissue Bank.

The Human Body Donation Program helps professional students learn about the human body and biology. Your next-of-kin must agree to the donation. Talk with your family about your wishes and ask that they honour them. If the program accepts your remains, they will cover the costs of cremation. Your ashes will be buried in the Dalhousie Memorial Garden or shipped to your next of kin. Your remains will usually be studied for one to three years before this happens. For more information, call 902-494-6850 or visit medicine.dal.ca/departments/department-sites/medical-neuroscience/about/donation-program.html.

The Maritime Brain Tissue Bank collects brain tissues for researchers who are studying the brain or causes of dementia. For a brain to be donated, an autopsy must be performed at a hospital to determine the cause of death. The family of the person who has died must agree to this. Talk with your family about your wishes and ask that they honour them. For more information about this program, call 902-494-4130 or visit braintissuebank.dal.ca/

Service Nova Scotia has online information about pre-arranged funeral plans, including information about Funeral expenses, and a Pre-Arranged Funeral Plans Guide.

You can read the Nova Scotia Cemetery and Funeral Services Act online.

The community where you want to be buried will have a bylaw on cemeteries. To find out about bylaws in other areas of Nova Scotia, contact your town or municipality office.

The Confederacy of Mainland Mi’kmaq (CMM) has a Mi’kmaw Wills and Estates series which includes: 

1. Book One: How to Write a Will
2. Book Two: How to Settle an Estate 
3. Book Three: How to Write a Power of Attorney and Personal Directive 
4. Mi’kmaq Wills and Estates & Matrimonial Real Property.

Copies can be found online at cmmns.com/program/wills-estates/ 

There are also many books available through the public libraries which can help you make decisions about planning your own funeral.

Service Nova Scotia oversees the Nova Scotia Cemetery and Funeral Services Act, and the Embalmers and Funeral Directors Act, and deals with complaints or concerns under those laws.  Contact Service Nova Scotia at 1 800 670-4357 or 902-424-5200.

You can name someone as guardian in your will or a separate guardianship document. A separate guardianship document can be more useful because it is focused. You sign it and have someone witness your signature just as you would in a will. The guardian can use it if you are alive but can’t communicate and cannot care for your child.

If you name someone as trustee, you should do that in the document that deals with the asset. For example, if you are leaving money to your minor children in your will, your will should say who you are naming as trustee to manage that money. 

Your first choice for guardian might die or might not be able or willing to take on the job. This is why it is important to always name at least one backup guardian too, if you can.  Your backup guardian is called an “alternate.”

Talk with the guardian or guardians you choose to make sure they are willing and able to take on the job. Do that before you name them in a child guardian appointment document.

You will need two people to watch you sign your guardianship document and to sign it themselves. Those people:

• must be adults (over 19 years old)
• must not be named as guardian or trustee in the document

Neither they nor their spouses can gain any money from the arrangement. For example, if you appoint the guardian in your will, the witnesses cannot be people who receive something from the will (these people are called “beneficiaries”).

See a lawyer to make your child guardianship document. Or, use the free, basic Child Guardian Appointment form on the Legal Information Society’s website to name a guardian for your minor child or children.

No. The guardian does not automatically have the status of trustee. If you are leaving money or property to your minor children in your will, you should name a trustee in your will.  

You can name a trustee to look after your child’s share of your estate by naming them in your will and saying that they will hold the child’s share of your estate in trust. The trustee will manage the funds or property in trust until your child is an adult (19 years old or older). 

A guardian must be 19 years old or older and be mentally competent. They must be able to make decisions and understand the consequences of their actions. Ensure your child’s guardian is willing and able to take responsibility for your child. 

If you are in a shared parenting arrangement, you must name the other parent as the guardian unless they consent in writing to you naming someone else. If the other parent won’t consent to your choice of guardian, consult with a lawyer. 

The trustee gives your child’s guardian money from your estate to help cover the costs of raising your child. You can write instructions for the trustee in your will or guardianship document.

You can name the same person as guardian and trustee. Talk with a lawyer if you are unsure whether the person you want can handle both tasks.

No. The trustee only manages the money and property you entrust to them. You cannot give the trustee general powers over all the money and property that the child might acquire. 

If someone gives your children money or property in a document that does not also name a trustee, the court will need to name a trustee for that money or property. 

For example, if a relative leaves money directly to your children without naming a trustee in their will or in a life insurance policy, someone will need to apply to court to be appointed as the trustee for that money. If no one applies to court, the Public Trustee acts as trustee for the money.  

No. If an adult is unable to make important health, personal care or financial decisions on their own, a family member or other caring person may need to apply to court to ask to become the adult’s representative to make some or all of those decisions for them.  

A representative may make only the decisions the adult is not able to make on their own. Go here for information about representative decision-making for an adult.

It is best to talk with an estate planning lawyer to plan for the future care and financial support of an adult child who needs decision-making support.

After you die, a person who disagrees with your choice of guardian or trustee can apply to Family Court to contest your decision. What happens next depends on:

• whether the person contesting your choice is the other parent (or someone who was in a parenting role)
• what arrangement a judge thinks would be in the best interests of the child. 

If the person contesting your choice is the child’s other parent, the court will assume that they should be the guardian. The person named in the guardianship document will be able to challenge this in court. The court may appoint your guardian over the other parent if a judge thinks that is in the best interests of the child. 

In all other cases, the court considers applicants equally and bases its decision on what is best for the child. The court will consider your wishes. However, they may overrule your choice if the person contesting presents a strong case.

The judge may consider:

• how well the child knows the person
• whether they have a family relationship, for example, are blood relatives
• how much the child’s life would be disrupted (having to move)
• if there are siblings and whether they can stay together.

The court can also consider the children’s wishes, especially the more mature ones.   

If you die or become unable to care for your children, the other parent usually takes care of the children if they are under 19 years old. 

Even so, parents should name each other as guardians in their wills, in a guardianship document, or separation agreement. This tells the court what you want in case someone else applies to be the guardian after your death.

The same is true if you are a single parent with primary decision-making responsibility. Usually, the child’s other parent will become the guardian if something happens to you. However, naming the other parent in writing makes it clearer for everyone.

If you share parenting responsibilities, you must name the other parent as the guardian unless they consent to someone else being named. They must consent in writing. 

If you name a different person as guardian without the consent of the other parent, the other parent can go to court. The court will name the other parent as guardian unless the judge decides they are unsuitable. With that in mind, if you are planning to name a different person as guardian (someone other than the parent), you should get a lawyer to help you write out your wishes, concerns and reasons for choosing another person. Your statement will be important if people disagree about guardianship after your death. 

Dying without naming a guardian will complicate things for your children and the other people who care for them. 

If the children end up living with another family member or friend, that person may have difficulty getting benefits or dealing with others like school administrators or health care professionals so they may have to seek a court order confirming them as the guardian. 

Concerned family members or friends may argue over who should be the child’s guardian. If that happens, the court will choose a guardian from among the people who ask for the role. The decision is based on the child’s best interests. 

If there is money in your estate for the children and you have not a named a trustee for that money, the Public Trustee becomes the automatic trustee of the children’s property. Anyone else will have to get a court order confirming them as the guardian of your child’s money and property. 

If there is no one to take on the role of guardian, the children will end up in the care of Child Protection Services.  

Children can receive a little bit of money or property through their guardian without a trustee involved. Specifically, children can receive a total of up to $10,000, but they can only receive a maximum of $2,000 in a single year. 

A responsible person will need to apply to the Supreme Court to be appointed as trustee for the child if the child receives a gift that:

• does not include a named trustee
• is greater than $10,000 in value or
• needs to be paid out in a lump sum that is greater than $2,000 in a single year 

If the court appoints the trustee, the trustee usually must be bonded. This means they must give a personal bond or arrange a surety bond through an insurance agent. The court can decide that it does not need a bond. Bonding can be a complicated process. The trustee has to pay a fee but can charge the fee to the estate.

Bonding the trustee protects the child in case the trustee acts in a way that is not in the child’s best financial interests.

The Public Trustee is automatically the trustee of a child’s property and finances. If no one applies to be named trustee of the child’s finances under the Guardianship Act, the Public Trustee of Nova Scotia will remain the guardian of the finances or estate. The Public Trustee can receive, manage and hold funds in trust until the child is 19 years old.

The guardian must provide financial support for your child. They may be able to get some government benefits to help:

• The guardian can apply for the Canada Child Benefit. 
• The Canada Pension Plan (CPP) provides monthly benefits to children when a parent dies, as long as the deceased parent paid into the CPP. These benefits go to the guardian until the child turns 18. They are then paid directly to the child if they enroll in an educational institution like a university or community college. The child can be paid until they reach 25 years of age. 

• Nova Scotia Family Law website (nsfamilylaw.ca): Frequently asked questions about guardianship
• The Public Trustee of Nova Scotia: novascotia.ca/just/pto/
• Canada Child Benefit, Government of Canada: www.cra-arc.gc.ca/benefits/
• Federal Government Family and Caregiving Benefits: https://www.canada.ca/en/services/benefits/family.html
• Supreme Court of Nova Scotia (Family Division) – courts.ns.ca

Nova Scotians can now make a basic Will from home using our free Wills App which produces a finished document that acts as a legal Will for Nova Scotians.

Our Guide to Making your Will gives basic information about Wills and how to get help using the app.

Our information on What the Wills App does not cover explains when you cannot use this Wills App and should seek legal advice in preparing your Will.

Our pdf Instructions for signing your Will gives you step by step instructions on how to print and sign your Will in front of independent witnesses and other important information about the formalities involved.

A will is a legal document that lets you say what you want done with your estate after you die. Your estate is your house, land, and personal things like jewellery and artwork. A will also lets you name an executor, who is the person you name in your will to carry out your final wishes. A will has no legal effect until you die.

A person who makes a will is called a testator. The people you name in your will to get money or gifts after you die are called beneficiaries.  Charities can also be beneficiaries.

After you die, your assets together are called your estate.

Your assets are anything worth money.  For example:

• your house or condo
• any other land you own
• bank accounts
• investment accounts and GICs
• valuable jewelry
• valuable artwork
• other household and personal items
• your vehicles.

Pets are also assets, as the law thinks of animals as personal property.

It is a good idea to have a will, even though Nova Scotia law does not say that you must make one. Making a will should give you peace of mind. A will makes it easier for family or friends to handle your affairs when you die.

There are many good reasons to make a will. A will lets you:

• deal with your important things the way you want to,
• give some or all of your estate to your common law partner. Without a will only married spouses and registered domestic partners inherit,
• give something to a friend, a charity, stepchild, a relative through marriage, or to someone else you care about. Without a will only married spouses, registered domestic partners, blood relatives or
  legally adopted persons inherit,
• name someone who will carry out your wishes,
• name someone to care for children or others who depend on you,
• make sure your pets or other animals will be cared for,
• save money and time by stating your wishes,
• save taxes
• arrange how a business you own will be handled
• help your family and friends handle your affairs after you die,
• lessen stress for your family and friends,
• lessen confusion about your wishes, and
• prevent possible disputes over your possessions.

Nova Scotia has a law called the Intestate Succession Act. This law directs what happens if a person dies without a will. Intestate means a person who dies without a will.

If you die without a will, or you have a will but it is not legally valid, your property is distributed to the people considered to be your nearest relatives as listed in the Intestate Succession Act. The rules are not flexible. The distribution may be different from what you would want.

The basic rules are:

• If you are survived by your legally married spouse and had no children all your property goes to your spouse
• If you are survived by your legally married spouse and you had one child, the first $50,000 goes to your spouse. The rest is equally divided between your spouse and child.
• If you are survived by your legally married spouse and more than one child, the first $50,000 goes to your spouse. One-third of the rest would go to your spouse, and two-thirds of the rest to your children.
• If you are survived by your children, but no legally married spouse, your whole estate would go to your children, with each getting an equal share.
• If you had no legally married spouse or children, your whole estate would go to your nearest relatives by blood or adoption, by order of priority as listed in the Intestate Succession Act. Relatives by marriage are not included.
• Your estate would only be paid to the government if you have no surviving relatives in your family tree.

A surviving legally married spouse will always get up to $50,000 from the estate before anyone else. If your surviving legally married spouse is not a joint owner of the family home, they may choose to take the home and household contents instead, or as part of, the $50,000.

The Intestate Succession Act gives no protection for common law partners, stepchildren, or grandchildren.  So, it is especially important to make a will if you want your common law partner, stepchildren, or grandchildren to inherit something from your estate when you die.

Here’s why:

• If you die without a will, only your surviving married spouse or registered domestic partner can inherit. Common law partners are not included as a 'spouse' under the Intestate Succession Act. Your common law partner will not automatically inherit your property or money that is only in your name. Your common law partner may have to go to court to make a claim on your estate, and may not be successful.
• If you die without a will, only your biological and adopted children can inherit. Stepchildren are not included. They would have to go to court to make a claim on your estate, and they may not be successful.
• If you die without a will, your grandchildren will only inherit from your estate if their parent (your child) died before you.

If you die without a will, there will be extra steps in the process of settling your estate, which will mean additional costs and delays. This may add to your family’s pain and distress. It will also mean that there will be less left to distribute.

Family members may disagree and argue about how you intended to distribute your property.

Someone will have offer to look after your estate. The person must apply and be appointed by a court as an administrator. That person may not be someone you would have chosen.  That person will have to be bonded for 1.5 times the value of your estate, which is often costly and can be challenging to put in place.

The intestate law also applies if you do not deal with all your property in your will, either intentionally or unintentionally. In this case you are said to die partially intestate. The part of your estate not covered in your will is distributed according to the Intestate Succession Act.

Note: If you are a person registered under the Indian Act (status Indian) who usually lives on a reserve or Crown lands and you die without a will, the federal Indian Act determines who will settle your estate and who will receive your assets.  The distribution is a bit different from Nova Scotia’s Intestate Succession Act. In general an estate worth $75,000 or less goes to the surviving spouse, including a common law spouse, and if it is over $75,000 it is divided among the surviving spouse and children in portions that vary depending on how many children there are.  If there is no spouse or children, other family members can inherit. 

The federal Indian Act has rules for making wills that apply to persons registered under the Indian Act who usually live on reserve or on Crown lands. The Indian Act does not apply if you have status under the Indian Act and live off-reserve, or if you do not have status under the Indian Act and live on-reserve. Provincial laws apply instead.

If you have status under the Indian Act and ordinarily live on a reserve or Crown lands, you can get information about making a will from:

• Indigenous Services Canada online canada.ca/en/indigenousservices-canada.html, under ‘Treaty annuities, estates and trusts’, and ‘Estate services for First Nations’
  
  
• the Confederacy of Mainland Mi’kmaq (CMM),  Mi’kmaw Wills and Estates series which includes:

1. Book One: How to Write a Will
2. Book Two: How to Settle an Estate
3. Book Three: How to Write a Power of Attorney and Personal Directive
4. Mi’kmaq Wills and Estates & Matrimonial Real Property.
Go to cmmns.com/program/wills-estates/ for more information.

• a lawyer who does wills and estates law, and who knows about Aboriginal law and the rules that apply to wills for persons registered under the Indian Act who usually live on reserve.

Yes, especially if you own anything on your own and if you want someone specific to inherit it. This includes items of sentimental or personal value, such as keepsakes, or plans, such as arranging for the care of pets and other animals in your care. You might die before your partner or spouse, or you could die at the same time in an accident. A will is the best way to let your wishes be known. You can each have a will that mirrors the other’s will. Mirror wills are separate wills with identical terms.

A will is a powerful legal document.  In Nova Scotia you can write a will with the help of a lawyer or without a lawyer; the law does not say that a lawyer must write your will.

Nova Scotians can now make a basic Will from home using our free Wills App which produces a finished document that acts as a legal Will for Nova Scotians.

Our Guide to Making your Will gives basic information about Wills and how to get help using the app.

Our information on What the Wills App does not cover explains when you cannot use this Wills App and should seek legal advice in preparing your Will.

Our pdf Instructions for signing your Will gives you step by step instructions on how to print and sign your Will in front of independent witnesses and other important information about the formalities involved.

However, it is always best to have a lawyer write or at least review your will. A lawyer will help you make sure what you want is set out clearly and in proper order.  A lawyer can save a lot of trouble and expense for the people who should benefit from your will and for the person you name as your executor.

You should have a lawyer read any document that may affect your will.  Examples are a separation agreement, shareholder agreement, court order, or beneficiary designations you make on investments and life insurance.

You should talk with a lawyer no matter what you put in your will. But some situations are more difficult than others.  Having a clear will makes all the difference in the world to the people who depend on you.

Your will must be worded carefully. A lawyer can:

• make sure your will clearly describes your wishes
• make sure your will follows the law
• help you deal with things that you might not have thought about
• tell you what you can do now to make it easier for your executor to deal with your estate after you die
• answer any questions about the process of dealing with your estate
• give proof in the future that you made your will by your own free choice, without pressure from anyone else, and
• give proof in the future that you had testamentary capacity (were “of sound mind”) to make your will.

A lawyer can also help with problems like:

• Family pressure.  You might feel that a family member or other person is pressuring you to leave money or property to them in your will. You can talk to a lawyer about this.
• Worries about family members. You might worry that someone who depends on you will not be able to manage their financial affairs if you die before them. In these cases, you can talk with the lawyer about how to best provide for that person.

Lawyers usually charge a fee based on how much legal service you need and how complex the will is. The cost to do a will can begin at less than $400 and go up. Lawyers often charge a flat fee for doing a will. Some lawyers offer estate planning package deals. 

In a package deal, the lawyer might write your will, a power of attorney, and a personal directive and charge a lower cost than for doing the three individual documents at separate times.  You should talk about fees before you decide to hire a lawyer. You should talk over the cost if you prepare the will yourself or if you want the lawyer to prepare it. 

Please contact us  to see if we can put you in touch with a lawyer who does wills & estates work, or go here for other ways to find a lawyer.

The will contains your instructions about what you want done with your property after you die. The language should be clear and simple, so no one is confused about what you meant.

A will should have several sections, called clauses:

Revocation
The will should say that you revoke, or cancel, all previous wills and codicils. A codicil is a document that changes a will. 

Appointment of an Executor
In your will, you should name someone as your executor and name a back-up executor. Your executor carries out your wishes as set out in your will when you die. Your executor must make sure they know what all your assets and debts are, pay your debts out of your assets, and then distribute what is left in your estate based on your instructions in your will.

More information about the executor's role is below, at 'Who looks after my will when I die?'

Disposal of Property (Specific Gifts)
This section of the will says who will get specific property (for example, a cottage, an antique car, valuable artwork, valuable jewelry, a specific amount of money) or property generally, and under what conditions. 

A will comes into force only after your death. Until you die, you can deal with your property as you wish. For example, if you leave your cottage to your niece in your will, you could still sell it before you die and use the money as you wish. The will can only dispose of property that you still own at the time of your death. 

As well, if you are leaving property to someone, you may want to say what should happen if they die before you or at the same time. For example, if you leave the cottage to your cousin, do you want your cousin's children to inherit it if your cousin dies before you or do you want the property to go to someone else?

Residuary Clause
Your will should include a residuary clause. This clause says what you want done with all your assets that are left after taxes, debts and expenses are paid and specific gifts have been given out.

If your will does not have a residuary clause, the remaining property (called the residue) will be treated as if you had died without a will. This means it will be distributed according to a provincial law called the Intestate Succession Act.

Other Clauses
A will may contain other clauses to suit your needs. For example, you may want to recommend a guardian for your children (although it is better to do that in separate child guardianship document), name a caregiver for your pets and leave that person a gift of money to thank them or to help with the expenses of taking care of your pet, create a trust fund, or set out the powers of the executor.

The Nova Scotia Wills Act has certain legal requirements to make a will valid. Your will must meet all the legal requirements to be valid. The legal requirements are listed below.

Age: In Nova Scotia, you must be 19 years old or older to make a will. There are a few exceptions. For example, a person under 19 can make a will if they are or were married.

Capacity: You must be mentally competent to make a will. It is also called having testamentary capacity. This basically means that at the time you sign your will you must:

• know that you are making a will and understand what a will is,
• know what property you own and have a general idea what it is worth
• know how much money you owe; and
• be able to name the people in your family you should gift your estate to (even if you do not intend to), and other people you wish to leave something.

If you lose capacity after you have made your will, the will is still valid.  You should make your will while you are in good health so that your capacity to make one is not questioned.  Whether you are capable of making a will can be questioned:

• if your ability to think clearly is affected by illness (including dementia or Alzheimer’s) or pain
• if you are taking drugs
• if you feel pressured to write a will because someone is insisting that you do one. A will must be made without pressure or influence by anyone, including people you might rely on to help you financially, for housing, or for personal needs and health care.

This is not a complete list.   But it gives you a sense of the challenges that are often made to the validity of a will.  And more than one of those criteria may apply to any situation.

Even if you have some trouble understanding information or lack some decision-making ability, you might still be able to meet the legal standards to make a will. A health problem that affects your thinking matters, but it is not the only thing that matters.  For example, someone in the early stages of Alzheimer's who has a bit of trouble with thinking and reasoning might still be capable of making a will.  Whether you are capable of making a will is a legal question, not a medical one.  However, if that is your situation you should get help from a lawyer who does estate planning and who has experience working with people who have some decision-making, reasoning, or memory problems.  You might still be able to do a will under the right circumstances and with the information explained in a way that you are able to understand.

If you don’t have testamentary capacity, or you are pressured or influenced by anyone else to do one, you should not make a will.  If you do make one, someone could challenge your will in court, and your will would probably not be valid.  In that case, you would be considered to have died without a will.

Knowledge: You must know and approve of the contents of your will. The will may be invalid if you were misled by fraud or simply by accident. It may also be invalid if someone put pressure on you to do your will or put certain clauses in it. This is called undue influence.

Written: A will must be in writing, but it does not have to be typed: it can be handwritten or printed. However, video, audio or digital recording, or any other way of communicating your wishes, are not considered to be valid wills.

Signature: You must sign your will at the end. You must sign it in front of two adult witnesses who must be present with you at the same time, unless it is a holograph will. If you cannot sign the will, you can ask someone to sign it for you in front of you and you must tell the two witnesses that the will is yours. 

When you are signing your will, you should put your initials on each page and number the pages so that pages cannot be replaced or removed from the will.

You should put the date on your will.

Witnessed and signed by two other people: Your two witnesses must also sign the will in front of you and in front of each other. Your witnesses should also initial each page.  The witnesses must be at least 19 years old. They must not be beneficiaries or be married to someone who is a beneficiary. The witnesses do not need to know what your will says.

You should also arrange for at least one of the witnesses to swear an Affidavit of Execution.

An affidavit of execution is a sworn statement that the witness saw you sign your will on a particular date and that you signed in front of both witnesses.

An affidavit of execution can be made any time after you sign your will. It is best to do it right after the will is signed because witnesses might move away or die before you after the will is signed. After your death, your executor can use the affidavit in court to show that the will was properly signed and witnessed. If there is no affidavit, the executor will have to find one of the witnesses and have the witness swear an affidavit when the executor applies to Probate Court for authority to act on the
instructions in your will.

The witness must sign the affidavit of execution in front of a lawyer or a notary public.

You can see an affidavit of execution on the Nova Scotia Courts website, under Probate Court forms. Look for “Affidavit of Execution of Will or Codicil.”

You can download a fillable pdf affidavit of execution here:

• Affidavit—Version 1 (67 KB)
• Affidavit—Version 2  (93 KB)

Use version 2 of the affidavit (93 KB) if you signed the will by making your mark and/or if you could not read the will and it was read out loud to you before you signed it. Otherwise, use version 1 (67 KB) .

Arrange for one of your witnesses to swear the affidavit of execution in front of a lawyer or notary. The witness who is swearing the affidavit must not sign it until they are in front of a lawyer or notary.  This should be done in person. This can be done at any time after you and your witnesses sign your will. But it is best to do it right away, because witnesses might move away or die before you after the will is signed.

Lawyers and notaries will generally charge a fee for this service in the range of $40 to $75. You can call law firms near you to make an appointment for the witness and to find out the cost.  If you cannot pay a lawyer you can try Nova Scotia Legal Aid.

Once the affidavit of execution is complete, keep it with your will.  After you die, your executor will use the affidavit at Probate Court to show that the will was properly signed and witnessed. If no affidavit of execution has been done by the time you die, your executor must find one of your witnesses and have the witness swear an affidavit then. There will most likely be added costs, and this will take extra time.

In most cases, you are free to deal with your property as you wish. However, Nova Scotia laws place some limits on how you may distribute your property in your will. The laws expect you to give your dependents a fair share of your estate.  Those laws are the Testators’ Family Maintenance Act and the Matrimonial Property Act.

Testators’ Family Maintenance Act

This law tries to make sure that you leave your dependents with money and support whenever possible. Under this law, dependents are your children of any age, including legally adopted children, and surviving married spouse or registered domestic partner.

Common law spouses, divorced spouses, and step-children who have not been legally adopted are not dependents under this law.

If you leave a dependent out of your will, or leave them less than expected, they can go to court to make a claim for support from your estate. The judge thinks about all the circumstances of a case in deciding whether to give support to your dependents. They include:

• whether a dependent deserves help (what is their character and conduct),
• whether there is any other help available to the dependent,
• the dependent’s financial situation,
• any services the dependent provided to you, and
• your reasons for not providing for your dependent in the will. It helps if you put the reasons in writing and sign the document or include the reasons for leaving someone out in your will.

This is not a complete list. The judge may take other factors into account. The application for support must be made within six months after probate or administration of the estate has been granted. A person who wants to apply for support or make a claim to property under this law should talk with a lawyer. 

Matrimonial Property Act

This law recognizes that both spouses contribute to a marriage. The law says that when one spouse dies, the surviving spouse can apply to court for a division of the matrimonial assets, in addition to any other rights of the spouse under the will or on intestacy. The surviving spouse must apply to the Supreme Court. The surviving spouse must apply for division within six months after the court has granted probate or administration of the estate. Anyone who wants to make an application should first talk with a lawyer.

A judge decides what share of the matrimonial property the surviving spouse should get.

Common-law spouses are not covered by this law unless you have a registered domestic partnership. Then they are included from the date you registered the partnership.

Family member

The Testators' Family Maintenance Act and Matrimonial Property Act say you are responsible to provide for your family and dependents, but otherwise you are generally free to deal with your property as you wish. You may decide to leave your estate to someone other than your closest relatives. You may decide to leave it to some family members but not to others. If you want to do these things, you should get advice from a lawyer and record your reasons in writing.

Your executor looks after your will when you die. An executor is the person or corporation you name to carry out the terms of your will.  Your executor must make sure they know what all of your assets and debts are, pay your debts out of your assets, and then distribute what is left in your estate based on your instructions in your will. Your executor must follow the instructions in your will as closely as possible. However, they will not be able to follow instructions that are illegal, impossible, or would harm someone. Some types of court orders and contracts may also affect whether your instructions can be followed.

The executor’s job includes:

• paying off your debts with money from your estate,
• giving your assets to your beneficiaries according to your wishes as set out in your will. 

Your executor may also have to do paperwork for the Nova Scotia court that deals with estates, called Probate Court.

An executor is also sometimes called a trustee. This is because they have legal title to your assets after you die, while they are managing your estate, until they distribute everything to the beneficiaries you name in your will. The executor must also file your final tax returns, and the Income Tax Act calls your executor a trustee. And, if you leave property to anyone who can’t manage their own finances (like minor children), the executor may manage the property for that beneficiary as trustee for them too.

If you do not name someone to be an executor in your will or if you die without a will, your next of kin will usually ask the Probate Court to appoint someone to fill the executor's role. This person is called an administrator, and Nova Scotia’s Probate Act says who can apply to do that job.

The court uses the term personal representative for people who are appointed as an executor or an administrator.

It is best to name an executor in your will. It is also wise to name at least one back-up executor.  That way, you can be sure that someone you know and trust will handle your estate. Also, you can give your executor broader power to make decisions and to act for you than the Probate Court will give to an administrator.

Your executor:

• must be 19 years of age or older
• must be mentally competent
• should live in Canada to avoid tax issues, and ideally in Nova Scotia.

Most people ask a family member or a close friend to act as their executor. You need to be sure that the person you choose has the time and the ability to carry out the many duties of an executor. The executor should be someone who will get things done. Looking after an estate can be difficult and it takes time. Sometimes it includes responsibilities that last for years.

Being an executor can be a big job, so choose someone who is organized and who knows when they need to seek professional advice.

Here are some things to keep in mind:

• The best executor is a trustworthy, reliable, and competent adult.
• Think about choosing someone who is likely to outlive you.
• Choose someone who lives in your province to cut down on expenses.
• Your executor should live in Canada to avoid tax issues.
• Your spouse, a friend, family member, or heir may be able to do a good job as executor. Many people choose their spouse or main heir as executor.
• Your executor can also be a beneficiary.
• Think about choosing someone who knows about banking and business affairs.
• You should name a back-up executor in case your first choice dies, moves away, or for some reason cannot do the job. 

If you do not have someone suitable to be your executor, you may be able to name a trust company, a professional advisor (lawyer, accountant, sometimes an investment advisor), or the Nova Scotia Public Trustee. You should talk with them first; they do not have to accept this role and some professional advisors cannot or simply won't.  You must check first with the Office of the Public Trustee if you want them to act as your executor.

Any executor you name may charge your estate to do the work.

Your estate may be complicated. You might not have a relative or friend who is able to act as executor. What else can you do? You may want to name a trust company as your executor. You should check that the company is willing to act as executor or co-executor. If you do not check, the company may not act as executor when you die. The pros of using a trust company as executor are:

• They may be able to help you plan to save taxes and avoid problems. 
• They are strictly regulated, so you can be sure they will handle your estate properly and legally.
• They would be a neutral executor if you think your heirs will disagree about your will.
• The company may give you free advice on drafting your will and may store it for you.

The cons of using a trust company are:

• They may charge up to 5 per cent in fees (although any executor may charge your estate to do the work.)
• They can be conservative investors.
• They may not know your assets as well as a family member or friend.
• They may not know your dependents as well as a family member or friend.
• They may not be as flexible with your dependents as a private person could be.
• The taxes for their fees are paid from the estate.

Before you choose an executor, think about the time involved in administering your estate. 

For example, if you want to set up a trust for the care, education, and benefit of your children or grandchildren, this would be a long-term commitment for an executor. In a case like this, you may want to consider a trust company rather than someone who might not be able to make such a commitment or who might die before the funds in the trust have all been distributed.

Yes. A person named in your will as executor can refuse to act as executor. This is called renouncing.

Talk with the person you want to be your executor before you name them in your will. Ask if they are willing to do this for you. Just because an executor is named in your will does not mean that they are required to act on your behalf.

As well as asking someone to be your executor, you should ask another person to be a back-up executor in case your executor cannot or will not act, due to death, moving away, or for some other reason.

If the executor you named in your will refuses or is unable to act, and you have not named a back-up executor, your next of kin will have to apply to the court to appoint someone else. This causes delays and could cost money. 

Yes. You can appoint more than one executor (called co-executors) to share the responsibility. Co-executors must make decisions together. Each co-executor has the authority to sign documents for your estate unless your will says something different. One possible problem is that they may disagree about what to do. Since either can sign documents, this could cause problems for your estate.

Before naming co-executors to act together, consider whether your executors will work well together, and whether they will both be in the same geographic area when they must deal with your estate. Co-executors must make decisions together.  They must agree on all decisions.

It is a good idea to talk with a lawyer if you want to appoint two or more executors to act together.

The executor’s job is to gather together all of your assets, pay your debts and taxes, and distribute your money and property according to your instructions in your will. The executor may have to apply to the Probate Court for authority to deal with your estate. This authority is called a grant of probate. It gives the executor power to handle your estate according to the terms of your will.

A holograph will is a wholly handwritten will signed by the testator (the person who made the will), but not witnessed. 

Before August 19, 2008 holograph wills were not valid in Nova Scotia. Then the law was changed, and a holograph will made after August 19, 2008 is now legal. The courts have ruled that a holograph will made before August 19, 2008 is not valid.

If you have a holograph will, you should check with a lawyer to make sure it is valid.

If your will is unclear when you die, your family may have to go to court to sort out your estate. Your executor will have to talk to a lawyer.

Burial instructions are not legally binding. They are considered an expression of your wishes. 

Your executor might not read your will until after your funeral and burial, so they might not see your instructions before the funeral and burial happen.   

If you are going to put your burial wishes in writing, it is better to do that in a separate document and tell the people who need to know where to find it.

Speak with your executor and family members to make sure they know what you want.  Your executor is legally responsible to make your funeral arrangements, so this discussion is especially important if your executor is not a family member or there are different expectations among family members about how best to honour you.

Read Planning Your Funeral for more information.

Keep your will and the affidavit of execution where they will not be damaged by things like pets, mold, a fire, or flooding. A safe place to store your will is a fire-proof metal box like a filing cabinet or cash box.  If you hired a lawyer to write your will, you can ask them to keep a copy as well.

Tell your executor exactly where your will is.  Only an original will is valid in Nova Scotia and in most other places, so it is very important for your executor to have the original will when you die.

Keep an up-to-date, detailed record of your assets (including accounts, insurance policies, investments) and debts with your will or where your executor can find it easily.

Keep an up-to-date, detailed list with the contact information for all the beneficiaries you have named in your will, especially if the primary or back-up executor you name does not know everyone personally.

Look at your will every few years or any time you have a major event in your life, like a marriage, new common law relationship, separation, divorce, the birth of a child, a move outside Nova Scotia, or the death of a beneficiary.

You should also regularly review any property you own jointly with someone else, and assets with a named beneficiary, such as pension plans, life insurance, RRSPs, RRIFs, TFSA, to make sure they still do what you want them to.

If you decide that you want to change your will, you can cancel (revoke) it by destroying it or by making a new will. If you make a new will, destroy the old one so there is no confusion about which version should be used.  See 'Cancelling your will' below for more information.

Wherever you decide to keep your will, you should tell the people in your life who need to know about it where to get it when it is needed.

You can change your will at any time up until you die as long as you are mentally competent and are not being influenced or pressured by anyone else to make those changes. You should look at your will from time to time to make sure it is still what you want. For example, you may no longer own property mentioned in your will. You may want to make changes because of births, adoptions, deaths, marriages, new common law relationships, separations or divorces in the family.

There are two usual ways to change your will:

• The best way is to make a new will.  The first clause of a new will usually say that it revokes (cancels) any previous wills. The most recent will, as long as it is properly signed and witnessed, is the one that will be used following your death.

• You can write a separate document called a codicil to change part of your will.   A codicil must name the will being changed, including a reference to the date the will was signed. It must clearly say which clauses of the will are being removed or changed and clearly set out the new terms of the will. The codicil should also say that apart from the changes it makes, you confirm the terms of the original will. You must sign the codicil and have your signature witnessed in the same way as your will. But codicils should be avoided. A codicil is generally used only to make very minor changes to a will.  Make a new will if you wish to make major changes to your will or if you already have one codicil. Codicils are frequently lost and frequently written improperly.  They are a hold-over from a time before computers, when wills were handwritten or typed, and it was faster to write a codicil. 

Never change your will by marking or crossing out words in the will. Instead, make a new will.

You must be mentally competent at the time you make changes to your will. You must also not be influenced or pressured by anyone else to make the changes.  If it is found that you were not competent or were influenced to make the changes, your new will or codicil may be successfully challenged in court.

There are five ways to cancel your will, or parts of your will. This is called revoking a will.

• If you get married, your will is no longer valid unless it says it is made as you prepare to marry that person, and that you want it to stay valid after the marriage. This is called being made 'in contemplation' of marriage.
• If you get divorced, parts of your will are no longer valid. In Nova Scotia, divorce revokes the parts of a will that give a gift to a former spouse, provide a benefit to a former spouse, or appoint the former spouse as executor. There are exceptions: the will, a separation agreement, or marriage contract may say that these parts of your will are not affected by a divorce.
• You can make a written document saying that you want to cancel the will. You must sign it and have it witnessed in the same way as a will. For example, in one case a bank manager had a person’s will. The person became ill and signed a letter to the bank manager that said: “Please destroy the will I have already made out.” The person had signed the letter in front of witnesses, and the letter cancelled the will.
• You can make a new will. A properly done codicil cancels clauses in a will.
• You can destroy the will or ask another person to destroy it in your presence. If your will is accidentally destroyed (for example, by a fire in which you die) a copy of the will can be used as long as there was no intention to cancel your will. However, a judge would need to give consent for the copy to be used, as the legal starting point (presumption) is that only an original will may be used in Nova Scotia for probate and estate administration.

Your will may be valid if it was made outside Nova Scotia. You should have it checked by a lawyer to see that it meets the requirements of Nova Scotia law.

You can contact the Legal Information Society of Nova Scotia for free legal information.

The Probate Courts in Nova Scotia make information available to the public. You may get copies of the forms by visiting or by calling your local Probate Court office or by going to the Courts of Nova Scotia website, courts.ns.ca.

The information available from the Probate Court includes:

• The Probate Act - Questions and answers
• Dealing with an estate
• Grant of probate - checklist
• Grant of administration with will annexed - checklist
• Grant of administration - checklist
• Passing the accounts of an estate in Probate Court - checklist
• How to prepare the final account of the personal representative

It is a good idea to speak with a lawyer who focuses on estate planning, and if possible a lawyer who has a Trust and Estate Practitioner or “TEP” designation.  The Legal Information Society of Nova Scotia's Lawyer Referral Service may be able to refer you to a lawyer who does wills.  Go here for other ways to find a lawyer in private practice who does wills and estates work.

A power of attorney is a legal document that lets you give someone you trust power to look after your finances and property for you. This could include the power to manage your land, house, bank accounts, investments, vehicles and anything else you own, paying your bills, filing your tax returns, cashing your cheques, and making other legal or financial decisions.

Giving someone power of attorney doesn’t limit you from making your own decisions —you still have control of your financial affairs and are free to deal with your property, money and investments, as long as you have capacity to make those decisions.

If you give someone the power to take care of your financial and property matters, you are called the donor. The person you give this power to is called the attorney, even if they aren’t a lawyer.  You can name one attorney, or more than one attorney.

A power of attorney is for financial and property matters only.  A personal directive is for health and other personal care decisions.   See the page on Health and Other Personal Care decisions for information about personal directives.

Power of attorney is a way for you to plan ahead and  choose someone you trust who will act for you and deal with your finances and property if you can’t act for yourself, or if you just need someone to help you with your finances for a short time.

Here are some reasons to make a power of attorney:

• You do not feel able or are too sick to manage your financial affairs and you need someone to take over for you until you get better.
• You can’t get around very well and you want someone to help with banking such as depositing or withdrawing money from your bank account.
• You are travelling or working away from home and you want to allow someone to manage your property and/or financial affairs while you are away.
• You have an illness that may reduce your ability to make decisions or to move around in the future, and you want to plan ahead for that.
• You want to make arrangements now while you are well and capable, to prepare for the unexpected. Capable means able to understand decisions about your property and financial affairs and able to make important decisions about these things. If something like an accident should happen which limits your ability to manage your finances and property or to get around, the power of attorney can be used to help you with decisions about your property and finances.
• If you do not make an enduring power of attorney and you become incapable to take care of your finances and property, someone may need to apply to court to ask to be named as your representative to handle your finances and property. This is a court process under a law called the Adult Capacity and Decision-Making Act.  The process is expensive and takes time.  The representative might not be the person or people that you would have chosen to take care of your affairs.  The court would decide what powers your representative would have and what decisions they could make on your behalf.  A power of attorney is more cost effective than a court order, and you can choose who you want to take care of your finances and property, and what powers they will have.

The federal Indian Act has rules for making powers of attorney that apply to persons registered under the Indian Act who ordinarily live 'on reserve'.  The Indian Act does not apply if you have status under the Indian Act and live off-reserve, or if you do not have status under the Indian Act and live on-reserve. Provincial laws apply instead.

If you have status under the Indian Act and ordinarily live on a reserve, you can get information about powers of attorney from:

• Indigenous Services Canada online canada.ca/en/indigenous-services-canada.html, under ‘Treaty annuities, estates and trusts’, then 'Estate Services for First Nations'
  
  
• the Confederacy of Mainland Mi’kmaq (CMM) has a Mi’kmaw Wills and Estates series which includes:
  1. Book One: How to Write a Will
  2. Book Two: How to Settle an Estate
  3. Book Three: How to Write a Power of Attorney and Personal Directive
  4. Mi’kmaq Wills and Estates & Matrimonial Real Property

Go to cmmns.com/program/wills-estates/ for more information.

• a lawyer who works in the area of wills and estates law, and who knows about Aboriginal law and the rules that apply to power of attorney for persons registered under the Indian Act who ordinarily live on reserve or on Crown lands.

Yes.  A power of attorney is different from a will.  Power of attorney only applies while you are alive.  A will applies only after you die—it says what happens to your money and things after you die, and gives your executor authority to look after your estate.  Even if your estate is small there are final matters to deal with when you die, such as filing final tax returns, paying final bills, and closing your bank accounts.  See the page on Making a Will for more information.

Power of attorney does not usually tell others how to make health or other personal care decisions for you if you cannot make them yourself.

Health and other personal care decisions are usually covered in a separate legal document called a personal directive that allows you to give someone you trust authority to make health or other personal care decisions for you if you cannot make those decisions yourself.  A personal directive covers personal care decisions such as medical treatment, where you want to live, activities that are important to you, and who you want to visit you. A personal directive allows you to name someone called a delegate to help make these types of decisions for you. You may also give instructions for the delegate to follow when they make personal care decisions.  Go here to learn about personal directives.

An enduring power of attorney is a type of power of attorney.  With an enduring power of attorney your attorney's power continues, or endures, after you can no longer make your own property and financial decisions.  This is called losing capacity.  An enduring power of attorney document must clearly state that the attorney's authority continues after the donor loses capacity.   If it does not state that, the attorney's power ends if you lose capacity.  For example, an enduring power of attorney may say something like the following:

This enduring power of attorney becomes effective immediately and may be exercised during any period of legal incapacity I may suffer. It is an enduring power of attorney within the meaning of the Powers of Attorney Act.

An enduring power of attorney makes sure your attorney can act and make decisions if you lose capacity to manage your property and finances. It is the most common type of power of attorney in Nova Scotia, because it allows you to plan for the future.  It gives you peace of mind knowing that you have appointed someone you trust to manage your finances and property if you cannot. 

You can choose when your enduring power of attorney takes effect. In other words, you say in your power of attorney when your attorney is allowed to start acting for you.

You have two choices: 

1) Takes effect as soon as it is signed and witnessed
Your attorney's power may take effect right away on the date your enduring power of attorney is signed and witnessed, and your attorney can start acting any time after that. Your attorney will be able to continue to act if you are no longer capable of managing your property and finances.

Most enduring powers of attorney in Nova Scotia take effect right away, but may not be used right away.  Your attorney may not need to act for you unless you ask them to, or until you lose capacity to managing your own affairs. If the document takes effect right away when it is signed, generally no capacity assessment would be needed in order for your attorney to start to act.  Your attorney would not have to go through a formal process to prove to third parties, such as banks, that the power of attorney has come into effect.  That makes it even more important to choose someone you trust to be your attorney.

If you are not comfortable allowing your attorney to determine when to start using the power of attorney to help you, there are ways to add more protection:

• you can ask if your lawyer will keep the original document for you (called ‘holding it in trust’) and only release it when it is clear that it is necessary, or
• you can keep the original enduring power of attorney in a safe place, tell your attorney where it is, but only allow the attorney to access it when it is needed.

Talk with a lawyer about other ways to prevent abuse of your power of attorney, and see 'Monitors and other ways to prevent misuse of power of attorney' below.

2)  Takes effect only if you lose capacity
Some enduring powers of attorney come into effect only when the donor is no longer capable of managing their own finances and property. This type of power of attorney is called a “springing” power of attorney because it springs into effect only when there is proof the donor has lost capacity.  In that case your attorney's power would start only if you lose capacity. These are much less common, as in some cases it is difficult for a capacity assessor to confirm that the donor is completely incapable of making their own property and financial decisions.  It is best to see a lawyer if you want to do this type of springing enduring power of attorney. 

You can state in your power of attorney who you want to assess your capacity to make property and financial decisions.  Usually you would choose a professionally qualified capacity assessor, but you can name anyone else you wish, including your attorney.   

If your power of attorney does not say who you want to do the capacity assessment or if that person cannot do it, a formal capacity assessment may be done by an approved health professional, including a medical doctor or registered psychologist. Some nurse practitioners or registered nurses, occupational therapists, and social workers may also do capacity assessments if they have completed specific training developed by the Nova Scotia Public Trustee’s Office. 

Unless the power of attorney says differently, a power of attorney comes into effect as soon as it is signed and witnessed.   Your attorney can start acting at any time after that. 

However, a springing power of attorney is a special power of attorney document that says the triggering event that will make it come into effect.   For example, the triggering event could be if the donor loses capacity to make their own property and financial decisions. Another example is if a business owner needs someone else to run their business for a short time because they are going to be travelling or in hospital.

Springing powers of attorney are also sometimes called a contingent power of attorney because they only take effect when a particular triggering contingency (event) happens.

Springing or contingent powers of attorney are much less common than powers of attorney that come into effect as soon as they are signed.  It is best to get legal advice from an estate planning lawyer if you want the type of power of attorney that comes into effect only when some triggering event happens.

If you do not have an enduring power of attorney and you lose capacity to take care of your finances and property, someone may need to apply to court to ask to be named as your representative to handle your affairs under a law called the Adult Capacity and Decision-Making Act.  The court process is expensive and takes time.  The person or people who apply to court to be your representative might not be who you would have chosen to take care of your affairs.  The court would decide what powers your representative would get  and what types of decisions they could make on your behalf.

If no one you know is able and willing to act as a representative, the Nova Scotia Public Trustee may step in to manage your financial affairs.   Go to the Public Trustee website at novascotia.ca/just/pto for more information.

You can get more information about adult representation on the Nova Scotia Public Trustee’s website under “Adult Capacity and Decision-making Act”, or go to the Legal Information Society of Nova Scotia's page on Adult Representation.

The kind of power of attorney document you have depends on your needs. Every situation is different, so you should speak with a lawyer about what is best for you.

An ordinary power of attorney gives someone authority to take specific action for you at specific times. For example, people in the military may allow someone to handle their banking while they work outside of Canada.

Enduring powers of attorney are much more common as they allow you to plan for the future and have someone you trust to act for you when you cannot act for yourself.

If you want the person named in your power of attorney to be able to act if you lose capacity, then you will need an enduring power of attorney.

If you already have an ordinary power of attorney, talk with your lawyer about whether you should replace it with an enduring power of attorney.

You can make a power of attorney if:

• you are age 19 or older (an adult), and
• you are capable of understanding the nature and effects of making a power of attorney.

The law says all adults are capable of making a power of attorney, unless there is clear evidence to show they are not.

You are capable of making a power of attorney if you understand and appreciate all of the following:

1. What property you own and the value. You must also have a basic idea of what things are valuable and what things are not.
2. Your legal obligations to people who depend on you for financial support—your dependants. Examples are your spouse and any children under 19.
3. That your attorney will be able to do almost everything that you can do with your property and finances, unless you say something different in your power of attorney document to limit their power.
4. That if your attorney does not do a good job your property could lose value. You might lose money.
5. That your attorney could abuse the powers you give them. Your attorney might not do what is best for you.
6. That you can cancel (revoke) your power of attorney at any time if you are able to understand what it means to do that.  If you have lost capacity you cannot revoke the power of attorney.

You must understand all of the above six things at the time when you sign the power of attorney document.

Sometimes a person may need help to communicate and explain their wishes.  The way you communicate does not tell people whether you are capable.  You may need support or help from a family member, friend, translator, interpreter, or technology to tell people about your wishes. Communicating in different ways does not mean that you cannot understand what it means to make a power of attorney.

You should make your power of attorney while you are in good health so that no one questions whether you had capacity to make one. Whether you are capable of making a power of attorney can be questioned:

• if your ability to think clearly is affected by illness (including dementia or Alzheimer’s),  pain, or drugs (prescription or otherwise)
• if you feel threatened or pressured to write a power of attorney by someone who may be trying to force you to make one.  Power of attorney must be made without pressure or influence by anyone, including people you might rely on to help you financially, for housing, or for personal needs and health care.

This is not a complete list.   But it gives you an idea about the types of challenges that may be made to the validity of a power of attorney. And, more than one of these issues may apply to any situation.

Even if you have some trouble understanding information or lack some decision-making ability, you might still be able to make a power of attorney under the right circumstances and with the information explained in a way that you are able to understand.  A health problem that affects your thinking may matter, but it is not the only issue that matters.  For example, someone in the early stages of Alzheimer's who has a bit of trouble with thinking and reasoning might still be capable of making a power of attorney.  Whether you are capable of making a power of attorney is a legal question, not a medical one.  But if you have a medical issue that affects your ability to think clearly, you should get help from a lawyer who does estate planning and who has experience working with people who have some decision-making, reasoning or memory problems.   The lawyer may require input from your doctor or a capacity assessor to determine if you have capacity to make a power of attorney before going ahead.  Don't be offended if this happens.  It is better to have a capacity assessment to make sure the document you make is valid and won't be challenged.

It is also very important to get help from a lawyer if you feel pressured or threatened by someone who may be insisting that you do one.

If you make a power of attorney and it is not clear if you were capable when you signed it, people might refuse to let your attorney act or make decisions for you.  Also, somebody could challenge your power of attorney in court.

Your power of attorney must:

• be in writing
• be dated
• be witnessed by two independent adults
• be signed by you and your two witnesses at the same time

Remember—you must be a capable adult at the time you sign the document.

In writing: Your power of attorney must be a written document.  A video or audio power of attorney is not valid.

Signed and Dated: You, the donor, must sign your power of attorney.  It must also be dated. 

If you are able to read the power of attorney document but cannot sign your name on it because of a physical disability for example, you may sign by making your mark, like an “X" or other symbol, on the signature line. A witness should sign a sworn statement saying that you made the mark in the presence of the two witnesses.  The statement should be attached to your power of attorney. This statement is called an affidavit of execution.

If you can read the power of attorney but cannot sign your name or make your mark, someone else may sign the power of attorney for you.  In that case the person who signs:

• must be at least 19 years old
• must be with you when they sign the document on your behalf. You must direct them to sign for you
• cannot be your attorney
• cannot be your attorney's spouse, registered domestic partner, or common-law partner
• cannot be your attorney's child.

If you cannot read the document someone must read the whole document out loud to you and your witnesses before you and your witnesses sign it or before you make your mark. A witness must sign an affidavit of execution saying that someone read the document to you and that you understood it before you signed it or made your mark on it.

Witnessed:  A power of attorney must be witnessed and signed by two people who are at least 19 years old.

Your witnesses cannot be:

• your attorney
• your attorney's spouse, registered domestic partner, or common-law partner
• your attorney's child.

Your witnesses must both be with you when you sign the document and must then also sign the document in front of you.   Your witnesses do not need to know what is in your power of attorney.

Other things that are a good idea to do: 
The following are not legal requirements but are a good idea:

• Number each page. This helps make sure pages are not replaced or removed.
• Initial each page. Both you and your witnesses should do this.
• Affidavit of Execution. Have one of your witnesses swear an affidavit of execution.

An affidavit of execution is a sworn witness statement confirming that they saw you sign the power of attorney (or that another person signed on your behalf if you were unable to sign), and that you were at least 19 years old (an adult) when you made the power of attorney. The witness signs the affidavit of execution in front of a Commissioner of Oaths or a notary public.

An affidavit of execution can be made any time after you sign your power of attorney. It is best to do it right after the power of attorney is signed.

A Commissioner of Oaths or a notary public must confirm that the affidavit of execution is true. All lawyers are Commissioners of Oaths. You can also find Notaries Public and Commissioners of Oaths in the Yellow Pages, or go here for for ways to find one.

People often do an affidavit of execution for a power of attorney, even though the law does not say you must do one for the power of attorney to be used in all situations. But for example if you want your attorney to buy or sell land for you the Land Registration Office will need an affidavit of execution.

No. The attorney does not have to sign the power of attorney. But when the attorney is using the power of attorney they will have to sign documents at each bank, trust company, and credit union where you have an account that the attorney will use. Each institution will also have its own forms for you or your attorney to fill out. You will usually need a special form from your bank if you want your attorney to access your bank account(s). Contact your bank to find out what they need.

Note: When the attorney is acting for you and signs documents on your behalf they sign their own name, not your name. The attorney should include that they are acting as power of attorney.

Two examples of how an attorney would sign on your behalf are below:

Signed: John Smith, duly appointed attorney for Jane Smith, or
Signed: John Smith (power of attorney for Jane Smith).

The law does not say that a lawyer must write your power of attorney.  But it is wise to at least speak to a lawyer about it. You can write your power of attorney yourself. You can fill in a blank form; you can buy one from a store; or you may find one online. Check to make sure any form you use follows the requirements of Nova Scotia's powers of attorney legislation.

A power of attorney is an important legal document and it must be worded carefully to make sure that it says what you want. If a lawyer makes a mistake, the lawyer's liability insurance may cover the situation.

Among other things a lawyer can:

• make sure the power of attorney is clear about how much authority you give to your attorney,
• make sure that your power of attorney covers all the steps needed to do what you want done,
• make sure the power of attorney meets all the legal requirements,
• inform you about the best clauses to provide for unexpected events,
• inform you about options for wording the power of attorney,
• inform you about steps you can take now to make it easier for your attorney to deal with your affairs later,
• inform you about steps you can take to help prevent misuse of your power of attorney,
• answer any questions you might have,
• help you understand better how power of attorney works when you lose capacity and what the attorney will be doing for you,
• provide proof that you had legal capacity when you made your power of attorney,
• provide proof that you made your power of attorney by your own free choice, and free of undue influence
• act as one of your witnesses when you sign your power of attorney
• in some cases, keep your power of attorney for you and release it only when you need your attorney to act for you.

If you decide to write your own power of attorney, ask a lawyer to look it over. Ask them to make sure that it meets all the legal requirements and allows your attorney to do what you want.

Always get a lawyer's help:

• if you do not understand the information you need to make a power of attorney
• if you cannot identify and weigh your options and understand the effect your choices may have
• if you have a health problem that affects your thinking, reasoning, decision-making or memory
• if you feel pressured to do a power of attorney because someone is insisting that you do one
• if you want a specific power of attorney for a limited purpose such as to sign a deed to your home. 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. The document must be written carefully to meet your needs
• if you want to give the attorney a fee for doing the work, especially when the attorney is not a family member.

A power of attorney form from an office supply store costs a few dollars, or you may be able to find one online.   Banks do not charge a separate fee for their power of attorney forms.

The cost for lawyers’ fees will depend on your needs, how long it takes to draft the power of attorney, and the number of times the lawyer meets with you. You should ask the lawyer about their fees. Most lawyers charge a flat fee for doing a power of attorney and will often offer a flat fee package deal that would include doing your power of attorney, will, personal directive, and perhaps a child guardianship document if you have minor children.   Go here for ways to find a lawyer.

Other costs:

• Your attorney may have out-of-pocket expenses (called disbursements), such as for postage and telephone.
• If the attorney you appoint in the power of attorney document is also your lawyer and you ask them to do legal work like buying property, they may charge for doing that work.
• 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 a fee unless there is an agreement between the two of you for payment. In that case, you must include the terms of payment in the power of attorney document. If you do not they will not be entitled to a fee.  Often a family member or a friend acts as an attorney without payment.

Your attorney must be:

• age 19 or older, and
• able to understand what it means to act as an attorney under a power of attorney document and the responsibilities involved.

The best attorney is a capable adult you know well and trust. 

Here are some things to think about when you are choosing an attorney:

• Your spouse or partner, a family member, or a close friend may be able to do a good job. Many people choose their spouse or partner.
• Think about choosing someone who knows about money, banking and business affairs.  You can also state in your power of attorney that your attorney can get help from a financial expert if they need it, and the cost is paid out of your money.  The attorney must be able to keep good records and report to a monitor when requested or to a family member no more than once a year.
• Your attorney for finances and property and your decision-maker for personal care (your ‘delegate’) may not be the same person.  If so, will your attorney be able to work well with your personal care decision-maker to make decisions that overlap on money and personal care issues?
• Does your attorney get along with your close family and friends? Could there be conflicts?
• Will your attorney be available when you need them to act on your behalf? 
• Does your attorney live in Nova Scotia or in Canada?  It is best to name an attorney who lives in Nova Scotia, or at least in Canada. Naming a non-resident of Canada can cause legal and tax problems, so talk with a lawyer if you want to do that.

If you do not wish to or can't name a family member or friend as your attorney, you may name a trust company, a professional advisor (lawyer, accountant, sometimes an investment advisor), or the Nova Scotia Public Trustee. You should talk with them first.  They do not have to accept this role and some professional advisors cannot or simply won't.  You must check first with the Nova Scotia Public Trustee if you want them to act as your attorney.

The law says your attorney cannot be:

• anyone who is going through a bankruptcy process (called an "undischarged bankrupt"). The law says it is still okay to choose them if they tell you in writing about the bankruptcy, and while you have capacity you agree in writing that you still want them to be your attorney.
  
  TIP: be careful about choosing an attorney who has had trouble managing money.  There might be a greater risk that you will lose money and property.

• anyone who has been convicted of an offence involving dishonesty, like fraud, theft, or forgery. The law says it is still okay to choose them:
  • • if they have a pardon (record suspension) for that conviction; or
    • if they tell you in writing about the conviction, and while you have capacity you agree in writing that you still want them to act as your attorney.

TIP: be careful about choosing an attorney who has a conviction involving dishonesty.  There might be a greater risk that the attorney will misuse the power of attorney.

• anyone who is paid to provide health care or support services to you.  This restriction doesn't apply if your paid caregiver is your spouse, child, sibling, or parent.

It is best to name an attorney who lives in Nova Scotia, or at least in Canada. Talk with a lawyer if you want to name a non-resident of Canada as your attorney, as this can cause legal and tax complications.

Other than those restrictions, you can choose any trusted, capable adult as your attorney.

You can choose to name more than one attorney.  Be careful about doing this.  While there may be some good reasons to name more than one attorney, it can also lead to conflicts, costs and delays if your attorneys disagree. Be certain there is no possibility of conflict between your attorneys before you name more than one.  If attorneys disagree they might have to go to court to settle the dispute.

Tip: If you name multiple attorneys it is a good idea to have a "tie-breaker" clause in your power of attorney document to say how you want your attorneys to resolve disputes.

If you choose to name more than one attorney you can say in your power of attorney how you want them to make decisions. You might say you want them to make decisions jointly or separately:

• Jointly means that your attorneys make decisions together.  If you don't say anything in your power of attorney about how your joint attorneys should make decisions, the law says they must act by majority.  That means the decision of the majority of your joint attorneys will be the final one.    You can choose to say in your power of attorney that your joint attorneys must make decisions by unanimous agreement, instead of by majority.   Be careful about doing that.  If your attorneys cannot unanimously agree about a decision, there is no simple legal procedure to resolve the dispute. If one of the attorneys resigns the remaining attorney can continue to act.  Otherwise in most cases someone may need to apply to court.    
  
  Your remaining attorneys can continue to act if one or more of your joint attorneys:
• • • dies
    • gives up the job (resigns) by giving proper notice
    • loses capacity
    • will not act or is unable to act
    • cannot be found despite doing reasonable things to try to find them.
      
      
• Separately.  The law calls this "severally".  Acting separately means that each of your attorneys can make decisions for you on their own. One attorney would not have to contact any of the others and hear their opinion before making a decision or acting, unless you say in your power of attorney document that they must do that.

If at all possible name at least one alternate attorney.  An alternate attorney is sometimes also called a ‘back-up’ or ‘contingent’ attorney. Your alternate attorney can take over if your original attorney or attorneys cannot or will not act from the start or becomes unable to act part way through. The alternate attorney will have the same powers as the original attorney(s).  If you do not name an alternate attorney and your original attorney(s) cannot or will not act, your power of attorney will be cancelled and someone may need to apply to court to be named as your representative.

Talk with the person or people you want to be your attorney(s) before you name them. Ask if they are willing to do this for you.  They can say no to the job.  Make sure that they want the job and have the time and the ability to carry out the duties.  Looking after someone else's property and finances can be difficult and it takes time. Sometimes it includes responsibilities that last for years. If they say no, you must appoint someone else.

It is a good idea to talk with your attorney about:

• your attorney’s legal duties and responsibilities. See the section on “Your Attorney’s Role” below
• how and how often you expect them to communicate with you or with others you choose
• your instructions, values, wishes, beliefs, and attitudes about money and your financial goals. This will help guide your attorney to make decisions for you
• your plans for what you want to happen with the things you own when you die.

If you give someone your power of attorney:

• you can still make your own decisions and manage your own finances and property, until you become unable to do so
• your attorney can’t override decisions you make while you’re capable of making them yourself. Your attorney must consult with you and follow your instructions
• you can revoke (cancel) your power of attorney at any time, as long as you are still capable

What if I do not have capacity to make my own decisions?

If you have an enduring power of attorney and lose capacity, your attorney must involve you in decisions about your finances and property whenever it is reasonable to do that.

Your attorney must follow these steps to make decisions:

1. Follow the most recent, relevant instructions you gave when you had capacity, if any
2. If you did not give your attorney instructions, your attorney must follow your current wishes, if your wishes are reasonable
3. If your wishes are not reasonable or your attorney can't determine what they are, your attorney must decide as they believe you would have. Your attorney must take your beliefs and values into account when they do this
4. If your attorney doesn't know what decision you would have made, your attorney must decide based on what they believe is in your best interests.

You choose what your attorney can and can't do on your behalf.  Your attorney can only do what you give them authority to do.  You list their powers in your power of attorney document. 

You can give your attorney general powers or specific powers.

General powers 
You can give your attorney broad powers over all areas of your property and finances. They would be able to do almost anything that you can do with your finances and property. With general authority an attorney would commonly be able to do things like pay your bills, manage your banking and investments, do your taxes, and buy and sell property.

Specific powers 
You can limit what your attorney can do to a single decision, specific task or tasks, or to a specific time period. 

A specific power of attorney is most often used when you can't manage your financial and property matters for a short period of time.  A common example is if you need someone to sell a piece of land for you or to deal with your banking and bills for you while you are travelling. It is important that a specific power of attorney include all steps involved in the work you want done. For example, a power of attorney to buy a piece of land should include the power to sign all the needed documents and it may be time-limited for a few weeks or months.

A note about buying and selling land with a power of attorney
If you want your attorney to deal with land, your power of attorney must be recorded at the Land Registration Office where the land is located before the sale or purchase takes place. The power of attorney must be signed under seal and have an affidavit of execution.  If you are working with a lawyer they will register the necessary documents.

You can find phone numbers for Land Registration Offices in the government pages of the phone book under Land Registration or visit www.novascotia.ca for locations. There is a fee to record documents. Contact staff at the Land Registration Office for information on current fees for recording documents.

Land transactions done with a power of attorney are not valid until the power is registered.

Your attorney cannot:

• Make a will for you
• Change or cancel (revoke) your will
• Make a new power of attorney for you
• Change a beneficiary designation on your assets, unless the court orders this or the document specifically authorizes changes
• Vote in an election for you
• Make an affidavit (sworn document) for you.

Paying your attorney a fee for their work
Professionals such as trust companies, lawyers, or the Nova Scotia Public Trustee's Office 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 a fee unless there is an agreement between the two of you for payment. In that case, you must include the terms of payment in the power of attorney document. If you do not they will not be entitled to a fee. Often a family member or a friend acts as an attorney without payment.

Re-paying your attorney's expenses
Your attorney is allowed to pay themselves for reasonable out-of-pocket expenses they have for properly doing their job as your attorney, unless you say something different in your power of attorney. This is called reimbursement. Examples of expenses are taxis, government fees and court fees.

Power of attorney generally gives your attorney the power to do almost anything you can do with your finances and property.   Government, banks or other third parties will rely on what's in your written power of attorney document.  They will not usually contact you first to see if you approve of what the attorney is doing.

Most people who are named in a power of attorney are honest and act reasonably. They try to do a good job and help you as they said they would and live up to their obligations.

There is a risk though that the attorney could misuse or abuse that power because they believe that they know what is best for you, or they want to get money or property for themselves.

This section talks about some things you can do to help prevent or stop misuse of your power of attorney.

You have the option of naming someone to review and watch over your attorney's activities and decision-making.  This person is called a monitor. 

A monitor can help protect your well-being and finances if your attorney misuses their authority.

A monitor may:

• visit you and communicate with you at any reasonable time
• check in with the attorney to make sure your attorney is taking good care in managing your finances and property, including asking your attorney for records of what the attorney has done on your behalf
• if you lose capacity, require that your attorney give the monitor information, records or a detailed accounting of what the attorney has done on your behalf
• apply to court to deal with any problems related to the power of attorney.

You can say in your power of attorney if there are other things you want your monitor to be able to do in overseeing your attorney.

If your monitor believes your attorney is misusing the power of attorney, the monitor must tell you and any other attorneys named in your power of attorney.

If you choose to name a monitor in your power of attorney:

• pick a capable, responsible adult you trust,
• talk with them about it first to make sure they are prepared to do it.

Your monitor cannot be your attorney or attorneys.  Other than that you can choose any trusted adult to be your monitor, including someone who lives outside Canada.

Here are some other things you can do help stop someone from abusing your power of attorney:

• Choose carefully. Choose an attorney you can trust who will involve you in decisions when reasonable to do that, keep you informed, and respect your instructions and wishes.
• Continue to pay attention to your financial and property affairs. Ask your attorney questions. Get regular statements and updates. Do not give up all control to that person.
• Require your attorney to give you, or someone else if you lose capacity (a monitor), regular updates on how they are managing your affairs.
• If you have a lot of savings, property, or investments, think about appointing a professional such as a lawyer or a trust company to act on your behalf. Talk with your banker or financial advisor about it. Look carefully into the costs before you make a decision.
• Think about choosing more than one attorney to act jointly. It is not likely that both will be dishonest or negligent. It is best to talk with a lawyer if you want to name two or more attorneys to act jointly.
• Give a specific rather than a general power of attorney. For example, if you need your attorney to deal with just one asset, such as a bank account, give them power to do only that.  However, a general power of attorney is usually more practical and useful.
• Check your bank statements and cancelled cheques carefully. You can put a limit on the amount that your attorney can withdraw from your accounts. If the attorney wants to withdraw more than that amount, then you would have to tell your bank that you agree.
• Tell your banks, financial institutions, and investment advisor to tell you about any transactions over a set limit.
• Make a list of the things you own: your property, valuable jewellery and artwork, savings, furnishings, and investments. Keep it up to date. Give a copy to your attorney, and to at least one other person you trust (such as a monitor if you name one)
• If you have investments, arrange for your investment advisor to keep you informed about all dealings. You can also give your investment advisor the name of a Trusted Contact Person (TCP). A TCP is someone you trust who knows you well, has nothing to gain financially from you, and is not your attorney. Your investment advisor can contact your TCP if they see signs that you may be a victim of financial abuse. A TCP does not have power over your finances and does not have access to your financial information or accounts. Talk with your investment advisor or contact the Nova Scotia Securities Commission for more information about naming a TCP.
• Read the Government of Canada’s publication Powers of Attorney and Joint Bank Accounts, for more information that can help you consider and manage the risks.
• Have a lawyer who does estate planning write your power of attorney.  A lawyer can inform you about steps you can take to protect yourself, and advise you about what to include in your power of attorney document to increase your protection from any abuse.

Below is a list of some things you can do if your attorney misuses the power of attorney. What you do will depend on your situation.

You can change your power of attorney if you are capable of understanding what it means to do that and the effects of changing it.  This is called varying your power of attorney.

However, it is best to make a new power of attorney rather than change your existing one. A power of attorney that has changes can cause confusion.  It is just as easy to make a new one because the legal requirements for making a valid change are the same as the requirements for making a power of attorney (see Making a Power of Attorney). 

If you do change your power of attorney you must tell your attorney or attorneys in writing about the change.  You should also do the following:

• Write to anyone who has been relying on your power of attorney. Tell them that you have changed your power of attorney and what the change is. Keep copies of these letters.
• Ask everyone who has a copy of the previous power of attorney document to return it to you. Banks and some other organizations may need to keep a copy of the document for their files.
• Contact the Land Registration Office to find out if the power of attorney is registered there. If so, your changed or new power of attorney document will need to be registered to replace the old one.

A power of attorney can end in any one of the ways listed below.

A power of attorney only has to be registered when it gives authority to deal with land. Then it must be registered at the Land Registration Office where the land is located.

Otherwise there is no registry for powers of attorney in Nova Scotia.

If you have a valid power of attorney or similar document from outside Nova Scotia that gives someone power to deal with your finances and property for you it is a valid power of attorney in Nova Scotia.  You do not need to make a Nova Scotia power of attorney. 

If you are not sure or if you have questions, ask a Nova Scotia lawyer to look at your document to see if it meets the requirements of the law here.

If your attorney may need to use the power of attorney outside Nova Scotia, check with a lawyer to see if you should write another power of attorney for that place.  If you have assets or property outside Canada you may need a separate power of attorney that is made based on the law in that country, made by a lawyer or other legal professional in that country, and that can be used to deal with your finances and property there.  Canadian powers of attorney may also need to be authenticated for use outside Canada, depending on the legal requirements of the particular place.  Contact Nova Scotia's Department of Justice, Authentication Services or Global Affairs Canada, Authentication Services if a power of attorney needs to be authenticated for use outside Canada.

The law in Nova Scotia on powers of attorney changed on July 5, 2022.   If you made a valid power of attorney before that date it is still valid under the new law. You don't need to make a new power of attorney just because the law has changed.  You can make a new one if you wish though.  It is a good idea to review your power of attorney and your whole estate plan whenever you have big changes in your life, and at least every few years.

You should put your power of attorney document in a safe place. A fire-proof location like a fire-proof lock box or safe is the best place. Make sure you tell your attorney where the document is stored so that they can find it if it is needed.

If you want your attorney to start using the power immediately, give it to them. Or give it to them and tell them when they should start acting.  Keep a copy for yourself in a safe place. Give a copy to your bank, credit union or trust company, and to any other parties that your attorney will deal with for you. Keep a list of the businesses and people who have copies of your power of attorney in case you have to make any changes or want to revoke it.

If you have a power of attorney that may not be used for a while, perhaps never, do one of these things:

• Put it in a safe place that your attorney can access quickly, if they need to, and tell them where it is.
• Leave it with another person you trust, such as your lawyer, and give clear instructions about when to release it. Remember, though, that this person could die or move away.
• Give it to your attorney to keep in a safe place until it is needed.

If you only have one signed original of the power of attorney document, do not put your power of attorney in a safety deposit box that is in your name only, as your attorney may not be able to get access to it quickly. If you have another original or a notarized copy you can leave one in a safety deposit box. Think about adding the attorney’s name to the safety deposit box as well for ease of access.

It may be many years before your power of attorney is needed, if it ever is needed.  As time passes, keep track of where you are keeping your power of attorney. Tell the people in your life who need to know about your power of attorney where to get it when and if it is needed.

• Contact a lawyer who for legal advice.  It is a good idea to speak with a lawyer who focuses on estate planning and if possible a lawyer who has a Trust and Estate Practitioner or “TEP” designation. Here are some ways to find a lawyer.
• Contact the Legal Information Society of Nova Scotia for legal information.

A power of attorney is a legal document that lets a capable adult give another adult they trust the power to look after their finances and property. This could include the power to manage their land, house, bank accounts, investments, vehicles, and anything else they own, paying their bills, filing their tax returns, cashing their cheques, and making other legal or financial decisions.

The person who gets the power to act is called the attorney, even if they are not a lawyer.
The person who gives an attorney the power to look after their finances and property is called the donor.  A donor may name one attorney, or more than one attorney, to act for them.

An enduring power of attorney is a type of power of attorney.  With an enduring power of attorney, the attorney's power continues or endures after the donor can no longer make their own property and financial decisions.  This is called losing capacity.  An enduring power of attorney document must clearly state that the attorney's authority continues after the donor loses capacity.   If it does not state that, the attorney's power ends if the donor loses capacity.  For example, an enduring power of attorney may say something like the following: 

This enduring power of attorney becomes effective immediately and may be exercised during any period of legal incapacity I may suffer. It is an enduring power of attorney within the meaning of the Powers of Attorney Act.

An enduring power of attorney ensures the attorney can act and make decisions if the donor loses the capacity to manage their property and finances. It is the most common type of power of attorney in Nova Scotia because it allows a donor to plan ahead and name someone they trust to manage their finances and property if the donor cannot, or if the donor just needs someone to help with their finances for a short time.

If an adult does not have an enduring power of attorney and loses capacity to take care of their finances and property, someone may need to apply to court to ask to be named as the adult’s representative to handle their affairs under a law called the Adult Capacity and Decision-Making Act.  The court process is expensive and takes time.  The court would decide what powers the representative would get and what types of decisions they could make on the adult’s behalf.

If no one the adult knows is able and willing to act as a representative, the Nova Scotia Public Trustee may step in to manage the adult’s financial affairs.   Go to the Public Trustee website at novascotia.ca/just/pto for more information.

There is more information about adult representation on the Nova Scotia Public Trustee’s website at novascotia.ca/just/pto/ under “Adult Capacity and Decision-making Act”, or on the Legal Information Society of Nova Scotia's website at www.legalinfo.org/wills-and-estates-law/adult-representation under Adult Representation.

In Nova Scotia an attorney must:

• be at least 19 years old
• be able to understand what it means to act as an attorney under a power of attorney and the legal responsibilities involved
• be trustworthy, and
• be willing and able to take on the role

An attorney does not have to live in the same province as the donor, although it is easier if they do.  An attorney cannot take any personal benefit from the donor’s assets (estate) unless the power of attorney document specifically says they can.

An attorney cannot witness the power of attorney document, and neither can their spouse.

Who can't be an attorney?
The law says an attorney cannot be:

• anyone going through a bankruptcy process (called an "undischarged bankrupt"). The law says it is still okay for a donor to choose an undischarged bankrupt if the person tells the donor in writing about the bankruptcy, and while the donor has capacity the donor agrees in writing that they still want them to act as attorney.
• anyone convicted of an offence involving dishonesty, like fraud, theft, or forgery. The law says it is still okay for a donor to choose them:

• if they have a pardon (record suspension) for that conviction; or
• if they tell the donor in writing about the conviction, and while the donor has capacity the donor agrees in writing that the donor still wants them to act as attorney.

• anyone paid to provide health care or support services to you.  This restriction doesn't apply if your paid caregiver is your spouse, child, sibling, or parent.
  
  
  

The donor can choose to name more than one attorney. However, problems can happen when the document names multiple attorneys to work together or independently. Be careful not to accept such a role unless you are sure you can work with the other named attorney. 

Read the power of attorney document.   The document may say how the donor wants the attorneys to make decisions and how disputes should be worked out if they happen. The donor may direct the attorneys to make decisions jointly or separately:

• Jointly means that the attorneys make decisions together. If the power of attorney does not say how joint attorneys must make decisions, the law says they must act by majority. That means the decision of the majority of the joint attorneys will be the final one. The donor can say in their power of attorney that the joint attorneys must make decisions by unanimous agreement instead of by majority.   This can cause problems. If attorneys cannot unanimously agree on a decision, there is no simple legal procedure to resolve the dispute. If one of the attorneys resigns, the remaining attorney can continue to act.  Otherwise, in most cases, someone will need to apply to court.    
  
  Remaining joint attorneys can continue to act if one or more of the attorneys:

• dies
• gives up the job (resigns) by giving proper notice
• loses capacity
• will not act or is unable to act
• cannot be found despite doing reasonable things to try to find them.

• Separately.  The law calls this "severally".  Acting separately means that each attorney can make decisions for the donor independently. One attorney would not have to contact any of the others and hear their opinion before deciding or acting unless directed in the power of attorney document that they must do that.

Whether attorneys are acting on their own or together, each attorney should ensure that everyone is acting in the donor's best interest.

Being an attorney is a serious responsibility. As an attorney you are called a fiduciary and must act with good faith and honesty. Being a fiduciary means making decisions only for the donor’s benefit, not for your interests and needs or those of others. You must fulfill your legal responsibilities to the donor and manage potential problems that may come up, such as conflicts with others who may disagree with your decisions.  See “Your legal duties and responsibilities to the donor” for more about what it means to be a fiduciary.

Here are a few things to think about in deciding whether to take on the role:
1. Will you be able to keep organized and keep track of all the funds spent for the donor's benefit? You must give an accounting when your role ends.

2. Will acting as attorney put you in situations where your interests may conflict with your duties as attorney?

3. Does the document authorize a fee for you to be paid for the work? There is no defined fee given by Nova Scotia law.  An attorney is only entitled to be paid for their work as attorney if the document clearly says that or if the court orders it. You are entitled to use the donor’s funds for the expenses of doing the work and to be reimbursed if you spend any of your own money to help the donor.

Here are more things to consider:

• The value and nature of the donor’s property.
• How organized their affairs and papers are.
• How comfortable you are managing property and finances.
• Views of family members and concerned friends and the potential for disagreement with or among them.
• The potential for disagreement with any other attorneys.
• The potential for disagreement with anyone with the authority to make personal care decisions on the donor's behalf.
• What is happening in your own life? Do you have the time, ability, and interest to manage someone else’s financial affairs?
• How long the role might likely last. How old is the donor, and what is their state of health?

Yes, you can say no even if you are named in the document as the attorney. Being an attorney may involve a significant amount of work. Be sure that you have the time and ability to do the work. You can say no if you are surprised by a power of attorney appointment and do not wish to act.  Once you accept the role, you should not resign unless you have no choice, such as becoming ill or for some other serious reason.  See “When does power of attorney end” for more information about resigning.

 

As long as they have capacity, the donor can make decisions, manage their finances and property, and revoke (cancel) the power of attorney if they wish.  You cannot override the donor's decisions when they can make their own. You must consult with the donor and follow their instructions.

Read the enduring power of attorney document to determine when you can start acting for the donor.  Your power might start immediately, or it might start only if the donor loses capacity to make financial and property decisions.  There is more information below.

1) Attorney’s power starts right away
Your power may start immediately as soon as the enduring power of attorney document is signed and witnessed.  You could continue to act if the donor can no longer manage their property and finances. 

Most enduring powers of attorney in Nova Scotia take effect immediately but may not be used immediately.  The attorney may not need to act unless the donor asks them to or until the donor loses capacity to manage their affairs. If the document takes effect right away when it is signed, generally no capacity assessment would be needed for the attorney to start to act. The attorney would not have to go through a formal process to prove to third parties, such as banks, that the power of attorney has come into effect. 

To protect against possible abuse sometimes a donor may:

• ask their lawyer to keep the original enduring power of attorney document (called ‘holding it in trust’) and only release it to the attorney if it is clear it is needed, or
• keep the original enduring power of attorney in a safe place, tell their attorney where it is, but only allow the attorney to access it when it is needed. 

2)  Attorney’s power starts only if the donor loses capacity
Some enduring powers of attorney come into effect only when the donor is no longer capable of managing their own finances and property. This type of power of attorney is called a “springing” power of attorney because it springs into effect only when there is proof the donor has lost capacity.  In that case your power will start only if the donor loses capacity. These are much less common, as in some cases it is difficult for a capacity assessor to confirm that the donor is completely incapable of making their own property and financial decisions. 

The donor can state in the power of attorney who they want to assess their capacity to make property and financial decisions.  Usually, the donor would choose a professionally qualified capacity assessor, but they can name anyone else they wish, including their attorney.   

If the power of attorney does not say who the donor wants to do the capacity assessment or if that person cannot do it, a formal capacity assessment may be done by an approved health professional, including a medical doctor or registered psychologist. Some nurse practitioners or registered nurses, occupational therapists, and social workers may also do capacity assessments if they have completed specific training developed by the Nova Scotia Public Trustee’s Office.  

1.  Give written notice that you have started to act

When you start acting for the donor, you must give written notice to:

• the donor, and
• the monitor, if the donor named one (See “Monitors” for more information), and
• anyone else the donor listed in the power of attorney as a person they wanted to be notified. 

If no one on the above list can get notice, or if the donor did not name anyone to notify, you must give written notice to:

• the donor’s immediate family members. Immediate family member means the donor’s spouse, registered domestic partner or common law partner, adult child, adult sibling, or parent.
  and
• the donor’s delegates under a personal directive, if any.  

It is a good idea to keep a copy of the notice and proof that the required people got it is a good idea.  For example, keep the proof of delivery if you send the notice by Registered Mail or courier.

2. Review the enduring power of attorney document

• When does it come into effect? Right away when signed and witnessed? Or only if the donor loses capacity?
• What you are being asked to do?
• What limits are put on your authority?
• Are there any other attorneys?
• Will you be paid for your work or only reimbursed for out-of-pocket expenses?

3. Talk with the donor about the power of attorney, including:

• How to support the donor in decision-making
• Expectations about communication between you and the donor
• Any questions you have for the donor
• The donor’s values, wishes, and beliefs, attitudes about money and their financial goals, to help guide you in decision-making on the donor’s behalf

4. Learn about your legal duties

• You have a number of duties, including a duty to take good care and always act in the donor’s best interests.  This means you must not make decisions for your own benefit. See “Your legal duties and responsibilities to the donor” for more information.
• You must keep good records and always be ready to account for what you have done on the donor’s behalf (see “You must keep a record of your work as an attorney”)

4. Give notarized copies of the power of attorney to banks, businesses, or others who need to rely on it

5. Make a list of the donor’s assets and debts

See ‘What documents and information do I need?’

6. Make a budget for the donor’s income and expenses

• Set up a system to keep records (see “You must keep a record of your work as an attorney”)
• Track the expenses and income of the donor’s estate in chronological order to be prepared for the final accounting at the end of your role
• Keep receipts for every expense
• It is a good idea to create separate folders for different areas of work (a folder for employment history, list of bank accounts and bank statements, income tax returns, insurance papers, etc.)

Read the power of attorney document to find out what power you have. You can only do what the donor gave you authority to do. If you are unsure what powers you have, reviewing the power of attorney document with a lawyer is a good idea.

The donor may have limited your power to a single decision, specific task or task, or a specific time period. This is called “specific powers.” 

Or the donor may have given you broad powers over all areas of the donor’s property and finances. This is called “general powers.”  General powers means you may do almost anything the donor could legally do with their finances and property, subject to any conditions or limits the donor may have put on your powers.  The donor may have listed some specific things you cannot do or must do on their behalf.

There are always some things you cannot do as attorney.

You cannot:

• Make a will for the donor or change or cancel the donor’s will
• Make a new power of attorney for the donor
• Change a beneficiary designation on the donor’s assets unless the court orders this or the document says explicitly you can
• Give or “delegate” your power to someone else unless the document or court allows this
• Give or receive gifts or loans using the donor’s money unless the document says you can
• Vote in an election on the donor’s behalf
• Make an affidavit on the donor’s behalf.

The work you do as power of attorney will depend on the powers included in the power of attorney document.

Common responsibilities include:

• Paying bills
• Depositing money into accounts
• Investing money
• Preparing and submitting tax returns
• Buying and selling land
• Using the donor’s assets to support and care for the donor and the donor’s dependents
• Making gifts or loans at the donor’s request
• Keeping good records of all transactions done on the donor's behalf.

When you start acting as an attorney under a power of attorney document, you must find the original signed document. Getting some notarized (true) copies of the power of attorney document is a good idea. You will need to have the notarized copies for banks and others who must rely on the document. Do not give away the original. Anyone who needs it can be offered a notarized copy. If you cannot find the original, try to find the lawyer who drafted the original to find out if the lawyer knows where the original is stored or whether the lawyer can provide a notarized copy.

When you start acting as the power of attorney, you will need information about the donor’s affairs, including:

Financial information
Information about the donor’s assets and debts, including any:

• Real property (for example, a home, cottage, investment properties)
• Property held in trust for the donor
• Personal and household items (for example, furniture, vehicles, jewellery)
• Liquid assets (cash, bank accounts, stocks)
• Regular bill payments (monthly leases, electricity, heat, phone bill, credit cards, subscriptions, internet)
• Business assets and debts
• Debts owed to the donor
• Employment, insurance, pension, or other benefits the donor receives
• Other financial responsibilities (for example, spousal support or child support)

Contact information

• Names and contact information for banks and other parties you will have to notify as power of attorney
• Names and contact information for anyone else who is an attorney or delegate or representative for the adult. A delegate is a person appointed in a personal directive for health care decisions on the adult’s behalf. A representative is a person appointed in a court order to make decisions on the adult’s behalf. You may need to work with the delegate or representative at times. For example, if the donor needs to move to a care facility, this will involve both medical and financial decision-making.
• Names and contact information for anyone named as a monitor in the power of attorney
• Names and contact information for the donor’s immediate family members

Other

• Details about the donor’s financial wishes, especially any wishes that may lead to conflict with others
• How often and in what format the donor wants to review your activities as attorney (provide an accounting). The power of attorney document may talk about this.

Dealing with the donor’s bank
You can access the donor’s bank account if the donor gave that authority in the power of attorney document. The bank may need their legal department to review the document before they will allow you to act. The bank will need you to fill out their forms and will need your signature for their files. You may need to show the bank the original or provide a notarized copy of the power of attorney document. The forms you fill out at a particular bank can only be used for that bank.

Filing the donor’s income tax return
You must file the donor’s income taxes, if the donor included a clause in the power of attorney document that allows you to deal with the Canada Revenue Agency on the donor’s behalf.

Dealing with the donor’s real property
You may have the power to sell, lease or mortgage and generally manage the real property (land) of the donor if you are given that authority in the power of attorney document. The power of attorney must be recorded at the Land Registration Office in the County or District where the property is located before the sale or purchase takes place. The power of attorney must be signed under seal and have an Affidavit of Execution attached.  An Affidavit of Execution is a sworn statement by a witness confirming that they saw the donor sign the power of attorney. The power of attorney document will usually note the donor's marital status. If the donor is married or in a registered domestic partnership, be aware of spousal rights—speak with a lawyer about this if you are unsure.

 

An attorney is a fiduciary, which means a person who has been trusted with property or power for the benefit of someone else. As a fiduciary, you have legal duties or responsibilities that limit how you must carry out your powers on the donor’s behalf.  Your main duties to the donor are listed below.

You must be loyal to the donor. 
The duty of loyalty includes the duty to: 

• take good care as you make decisions using the power the donor gave you
• stay within the power you have been given
• use reasonable care and skill
• only act in the donor’s best interests
• not give or delegate the authority you have been given to someone else unless the power of attorney document clearly says you can
• avoid conflicts of interest
• act only for the donor’s benefit, unless the donor gives informed consent for you to act to benefit yourself or someone else
• not make secret profits
• not profit or benefit personally from what you do for the attorney or from the donor’s property. Note, however, that the power of attorney document may say if you are to be compensated for helping the donor and how you may be reimbursed for out-of-pocket expenses

You must give priority to the donor’s needs—making sure that they are safe and comfortable. Put their well-being above saving money for others who may inherit their money.  Remember, it is the donor’s money and property. It must be used for the donor’s benefit and in their best interests, even if you or others expect or hope to inherit the money and property when the donor dies. 

You must involve the donor in decisions whenever it is reasonable.
Involve the donor in decisions whenever possible.  Ask the donor what they want. The donor has a right to be kept informed and make their own decisions as long as they can.  If they cannot make their own decision, you must follow these steps to make decisions on the donor’s behalf, in this order:

1. Follow the most recent, relevant instructions the donor gave when they had capacity, if any.
2. If the donor did not give instructions, you must follow the donor’s current wishes if the donor’s wishes are reasonable.
3. If the donor’s wishes are unreasonable or you cannot determine what they are, you must decide as you believe the donor would have. You must consider the donor’s beliefs and values when making decisions.
4. If you do not know what decision the donor would have made, you must decide based on what you believe is in the donor’s best interests.

Highlight box: If the donor is found to lack capacity to make their own decisions, but later regains the ability to make decisions, you must stop acting. 

You must keep a record of your work as an attorney
Keep current, detailed and accurate records of what you do as an attorney.  In certain situations you may be asked to provide a complete record of all transactions you made for the donor. Or after the donor dies the Executor of the estate may require you to provide these records. This is calling providing an “accounting.”

Your legal duty to give an accounting is serious. It is a very serious matter to look after someone else's money and property.  You should always be ready to explain and account for what you do on the donor's behalf.  The donor can require you to give an accounting at any time.  You may also be required to give an accounting to others, including to a monitor if the donor named one (see “Monitors and what they do.”)

You should keep:

• a current list of what the donor owns (assets) and owes (liabilities, with known values or sensible estimates, and how the financial picture may have changed over time
• all bank records (monthly statements, withdrawals and deposit slips for all transactions, online records)
• all income tax information (notices of assessments, T4 and T5 slips, other supporting documents)
• all receipts for purchases you make such as parking, taxis, and, if applicable, any payments made to yourself
• all invoices received and paid on the donor’s behalf
• other important letters and papers (examples are leases, notices from landlords and employers, insurance information).

 

You must not mix your money and property with the donors’
You must keep your own bank and investment accounts separate from the donors' accounts. You should never mix your own accounts or property with the donor’s unless that was already done with the donor’s knowledge and agreement before the donor lost capacity.

Do not gift the donor’s money to yourself or others
You can make a gift from the donor’s property only if the power of attorney documents says you can. Still, be very careful.

Any gifts should follow what the enduring power of attorney document says. For example, the donor may have made regular gifts to a preferred charity or to family members on special occasions. As attorney you can continue this if the document says you can, and only if the donor will have enough money left to meet their personal care and health care needs and their legal obligations. And, if you give gifts, you must respect the donor’s estate plan whenever it is reasonable (see below).

You must respect the donor’s estate plan
You must not sell or dispose of assets you know are part of the donor’s estate plan unless you must do that to carry out your duties to the donor.

The donor’s estate plan could include the donor’s will, jointly owned assets, designation of beneficiaries on life insurance, registered plans (examples: RRSPs, TFSAs, RRIFs), and trusts. 

For example, if the donor tells you what specific gifts are listed in their will, you should not sell or give that property away, unless you must do that to ensure the donor’s needs are met. Meeting the donor’s needs always comes first.

You must not give your power to someone else
You must not give or “delegate” your authority to someone else.  However, this restriction does not apply if the power of attorney document says you can delegate your power to someone else.

You must not prevent contact between the donor and supportive friends and family
You must not unreasonably interfere with or prevent the donor’s personal contact with supportive family and friends.

The court may remove you from your role if you misuse your power of attorney. You may also face serious legal consequences if you use the donor’s property or money for your own benefit or the benefit of someone other than the donor.

It is a criminal offence to misuse a power of attorney.

You could be charged with other crimes, such as fraud or theft, depending on the situation. You could be sued for financial losses of the donor, charged with a criminal offence, or both.

The donor may have named someone in the power of attorney document to review and watch over your activities and decision-making.  This person is called a monitor. 

A monitor can help protect a donor’s well-being and finances and prevent an attorney from misusing the power of attorney.

A monitor may:

• visit the donor and communicate with the donor at any reasonable time
• check in with you to make sure you are taking good care in managing the donor’s finances and property, including asking you for records of what you have done on the donor’s behalf
• if the donor loses capacity, a monitor may require you to give them information, records or a detailed accounting of what you have done on the donor’s behalf
• apply to court to deal with any problems related to the power of attorney.

The donor can state in the power of attorney document if there are other things the donor wants the monitor to be able to do.

If a monitor believes an attorney is misusing the power of attorney, the monitor must tell the donor and any other attorneys named in the power of attorney. 

Fee
A friend or relative is not entitled to a fee for acting as attorney unless the donor states the payment terms in the power of attorney document. You will not be entitled to a fee if the donor does not do that. Often, a family member or a friend acts as attorney without payment.

Re-payment of reasonable expenses
You are allowed to pay yourself for reasonable out-of-pocket expenses you have for adequately doing your job as attorney, unless the donor directed something different in the power of attorney. This is called reimbursement. Examples of expenses are taxis, government fees and court fees.

You are ultimately responsible for all decisions, but you can ask for help from a lawyer, accountant, investment adviser, or other professionals. It may be helpful to talk to a real estate agent when dealing with land or an appraiser when assessing the value of certain assets. Most power of attorney documents give you the power to pay for the reasonable cost of hiring these professionals with the donor’s finances.

Depending on what you are required to do as power of attorney, you may be dealing with the donor’s loved ones or caregivers for a period of time. Everyone may have different ideas about what is best for the donor’s well-being. To help avoid conflict, you may want to keep them informed about any big decisions you make and explain why you are making them. Showing them respect and considering their opinions may help them feel included, even though you are the ultimate decision-maker.

You can only make health and other personal care decisions for the donor if they give you authority in the document.

A power of attorney does not usually cover decisions about health or other personal care. Another legal document called a personal directive covers personal care decisions such as medical treatment, where the maker of the personal directive will live, or who visits them. A personal directive allows a capable adult to name someone (a delegate) to help make these kinds of decisions for them and to give instructions to the delegate. You can learn more about a personal directive at www.legalinfo.org/wills-and-estates-law/health-care.

A donor can include the right to make personal care decisions in the power of attorney document. This may happen when the attorney (financial matters) and delegate (personal care matters) are the same person acting in dual roles. If the right to make personal care decisions is in the power of attorney document, it must be in writing, signed by the donor, and witnessed. The witness cannot be the delegate or the delegate’s spouse. The donor and delegate must be at least 19 years old and mentally competent.

Sometimes a clause in a power of attorney document will say that the attorney can give medical consent based on an older Nova Scotia law called the Medical Consent Act. That law is no longer in effect. Get legal advice if the only document covering health care decisions refers to this older law. It may not be effective.

Yes, sign your own name on documents even though you are acting on the donor’s behalf. You should include that you are acting as power of attorney when you sign documents on the donor’s behalf.

Two examples of how to sign are below:

Signed: John Smith, duly appointed attorney for Jane Smith, or
Signed: John Smith (power of attorney for Jane Smith)

Power of attorney ends in any of the following ways:

The donor revokes it in writing
The donor can revoke the power of attorney at any time if they have mental capacity to revoke it. This means they understand what it means to revoke the power of attorney. This is called giving notice of revocation. The written notice of revocation must be dated, and the donor must sign it.  If the donor revokes your power of attorney and you think they did not have capacity or that fraud or abuse was involved, it is a good idea to contact a lawyer.  You can apply to court to review the matter.

The donor makes a new power of attorney naming a different attorney
A new power of attorney ends (revokes) any prior power of attorney the donor made unless they say something different in their new power of attorney.  The donor must have capacity to make a power of attorney.

The donor loses capacity, unless it is an enduring power of attorney
If the donor loses capacity, power of attorney ends automatically unless it is an enduring power of attorney.

The donor dies
A power of attorney only applies while the donor is alive. When the donor dies their personal representative looks after their estate. The personal representative is the executor named under the donor’s will, or the estate administrator if the donor had no valid will.  

Bankruptcy
If the donor becomes bankrupt power of attorney ends and a licensed insolvency trustee takes over the donor’s financial affairs. A licensed insolvency trustee is a professional who manages the affairs of a bankrupt person.

If you (the attorney) become bankrupt you can only continue to act for the donor if you tell the donor in writing about the bankruptcy, and while the donor has capacity, they agree in writing that you can still act as their attorney. Otherwise, the donor’s remaining joint attorney or back-up attorney takes over and acts on the donor’s behalf, and the power of attorney document remains in effect.   If there is no joint attorney or back-up attorney, the power of attorney ends.

You (the attorney) lose capacity or die
If you lose capacity or die and the donor did not name a joint attorney or back-up attorney, the power of attorney ends automatically. 

The task or length of time the power of attorney was created for is done or ends
If the power of attorney was for a specific time or task, when the time or task is complete, the power of attorney ends. For example, the donor might have given you a specific power of attorney to sell the donor’s house. Your authority under that document would end once the house is sold.

A court orders it to end
If the court thinks it is appropriate, the court can end an attorney's authority, substitute another person for attorney, or end a power of attorney.  The attorney, a monitor, the Public Trustee, or another interested person would need to apply to court to ask for that to happen.  A judge would hear the facts and decide what should happen.

You (the attorney) are convicted of a crime
If you are convicted of a crime involving dishonesty, like fraud, theft or forgery, and the donor did not name a joint attorney or back-up attorney, your power as attorney is automatically suspended. However, in this situation, you may continue to act as attorney:

• if you have a pardon (record suspension) for that conviction, or 
• if you tell the donor in writing about the conviction, and while the donor has capacity, they agree in writing that you can still act as their attorney

It is best to speak with a lawyer if you have been convicted of an offence and you have power of attorney.

You (the attorney) resign by properly notifying the donor that you are no longer willing or able to act as attorney
You can stop being power of attorney if you become unable to continue acting as the attorney after you start.  This is called resigning.  You must notify the donor in writing if you are resigning.  

Read the power of attorney document as it may say what steps you must take to resign.  There may be a joint attorney, or the donor may have named an alternate (backup) attorney to act if you become unable or unwilling to act. If so, find out if the joint attorney or alternate attorney is willing to take over the role. 

If the power of attorney document does not say what steps to take to resign, the law says an attorney may resign by providing written notice as follows:

If the donor is capable of understanding what it means for you to resign, you should give written notice of resignation to: 

• the donor, and
• the donor’s monitor, if they named one, and
• any other attorneys named in the power of attorney.

If the donor is not capable of understanding what it means for you to resign, you should give written notice of resignation to the following, in order of priority:

• the donor’s monitor, if they named one, and to any other attorneys named in the power of attorney
• the donor’s immediate family members and personal care delegate, only if the donor does not have a monitor or other attorneys or they aren't available to be notified,
• the first available of the donor’s grandparents, grandchildren, aunts or uncles, nieces or nephews, or other relatives, only if no immediate family members are available,
• the Public Trustee, as a last resort.

If the donor no longer has capacity and there is no other attorney (co-attorney or alternate attorney) listed in the power of attorney document to take on the role, you can apply to court to ask the court to appoint someone else to manage the donor’s affairs.  

It is best to get legal advice on how to properly resign and be released as attorney. You may be required to give an accounting of all money spent on the donor's behalf before you are released from your duties. That is one reason why you must keep good records. Keeping a copy of your written resignation and proof that the required people got it is also a good idea.  For example, keep the proof of delivery if you send your resignation by Registered Mail or courier.

Important: If your legal power as attorney ends, stop acting on the donor’s behalf right away. Notify any bank, business or others you dealt with as attorney that your authority has ended. Even if it is easy to continue some tasks, like paying the adult’s bills - do not do it.

If you need legal advice or to talk to a lawyer about an attorney’s role and responsibilities, it is a good idea to speak with a lawyer who focuses their work on estate planning, including powers of attorney, and if possible, a lawyer who has a Trust and Estate Practitioner or “TEP” designation.  Here is information about ways to find a lawyer.   

 

Administrator - When a person dies without a will, there is no executor to see that everything is handled properly.  Or sometimes a will does not name an executor, or none of the executors named in a will are able to act. In these cases, someone needs to fill the executor’s role and see that everything is handled properly. This person is called an administrator. The court uses the general term personal representative for a person appointed as an administrator.  For more information, see the Wills section.

Custodian - A custodian is someone who has legal responsibility to care for something and keep it safe.  In the case of the Public Trustee Office, this might happen when the land or possessions of a missing or deceased person need to be located and protected.

Estate – everything that a person owns. It includes land, vehicles, investments, cash, jewellery, and furniture.  A person’s estate is often referred to as property.

Executor - someone named in the will of a person who has died, and who is responsible for seeing that everything is handled properly.  They gather assets of the deceased, pay debts and taxes, and distribute the remaining money and property according to instructions in the will. The court uses the general term personal representative for a person appointed as an executor.  For more information, see the Wills section.

Guardian - A guardian is someone who has legal responsibility for the personal or financial interests of a minor (person under 19).

Representative – A representative is a person appointed by the court to act for another adult who is unable to manage their own affairs. For more information, see the Representative Decision-making for an Adult section.

Trustee - A trustee is a person appointed by court order or other legal document to hold and manage something for the benefit of another person, for example, property. The Public Trustee may consent to be appointed as a trustee, for example, to manage insurance proceeds or a court settlement for a minor.

The Public Trustee often acts when no one else is able to take responsibility for a person’s estate.

The Public Trustee can act as a trustee for a person under the age of 19 who receives money in an insurance settlement or inheritance or as a named beneficiary, but does not have a parent or guardian who was named as a trustee to manage the money.

The Public Trustee can serve as a representative for an adult who cannot manage their own finances and has not given someone enduring power of attorney to act for them.

The Public Trustee investigates complaints about a representation order or guardianship order being misused. If you wish to make a complaint to the Public Trustee, you can call them at 902-424-7760 or send an email to [email protected].

The Public Trustee can apply to the Probate Court to manage the estate of a person who has died.

The Public Trustee can make health care decisions for a person who is not able to understand the risks, benefits, or the consequences of an important decision about their health. They will do this only if no one else can. If a patient has not named someone to make these decisions and has no representation order, a doctor will speak with the patient’s family about giving consent to treatment. If no one can or will make these health care decisions, the health care provider will contact the Public Trustee as a last resort. The Public Trustee will review the request. They will try to learn if the patient has ever expressed any wishes about the medical treatment. They will try to make a decision that respects the patient’s values, beliefs and wishes. If the patient's values, beliefs and wishes are not known, the Public Trustee will make a decision that is in the bests interests of the patient.

You can find more information on the following pages:  Representative Decision-making for an Adult, Powers of Attorney, and Health and Other Personal Care Decisions.

The Public Trustee accepts cases based on the facts.
Some things it will not do are the following:

• help a family solve a disagreement
• be responsible for a person's physical care and well-being.

Depending on the services provided, the Public Trustee can charge the same costs and fees as a lawyer. In some cases, a judge will say what the Public Trustee can charge for its work. The fee for some services is based on a percentage of the person’s estate and is set out in the regulations under the Public Trustee Act.

Usually the Public Trustee’s costs and fees are paid from the estate of the person. Sometimes a judge will order that another person pay. The accounts of the Public Trustee are audited every year.

You can get further information about the work of the Public Trustee’s Office online at novascotia.ca/just/pto/

You can also get in touch with the Public Trustee’s Office at:

Public Trustee’s Office
Suite 501 - 1465 Brenton St.
P.O. Box 685
Halifax, NS B3J 2T3
Tel: (902) 424-7760

Public Trustee - Health Care Decisions Division
Phone: (902) 424-4454
Fax: (902) 428-2159

Adult Capacity and Decision-Making Act – the Nova Scotia law that allows a judge to appoint a representative for an adult who is not able to make their own decisions.

Adult – In Nova Scotia, the age of majority (adulthood) is 19.

Assessor – An assessor is a doctor or psychologist, and with training, an occupational therapist, nurse, social worker, or other qualified health care professional.

Capacity assessment - testing by a health care professional (assessor) to find out if a person has the ability to make their own decisions

Capacity assessment report - A report prepared by a health professional (assessor) to explain whether an adult is able to make their own decisions. The report may also include information from other sources, like family and friends.

Representative - A person with legal authority to act for and make substitute decisions on behalf of another adult

Representation order - A Court order appointing a representative

Representation plan - A plan to manage the well-being and financial matters of an adult who cannot manage those matters for themselves.

Representation allows someone to be responsible for the personal and financial interests of an adult who is not able to make some or all of their own decisions. The person who applies for representation is called a representative. If an adult is unable to make significant health, personal care or financial decisions on their own,  another adult, such as a family member or other caring person, can apply to the court to be appointed as the adult's representative. Some people may refer to a representative as an adult guardian, attorney, delegate, or substitute decision maker, although these terms do not always have the same legal meaning.

The person for whom a representative is appointed is called an adult in need of representation. Only a judge can appoint a representative.

The law relating to adults who need a representative to help in decision-making used to be called the Incompetent Persons Act.  The Incompetent Persons Act allowed the court to appoint an adult guardian. The Incompetent Persons Act was replaced by the Adult Capacity and Decision-making Act on December 28, 2017.  The Adult Capacity and Decision-making Act allows the court to make a representation order appointing a representative for an adult.

Guardianship orders made under the Incompetent Persons Act continue as representation orders. Guardians become representatives, and have the same duties and responsibilities as new representatives under the Adult Capacity and Decision-making Act.

Representation used to be called “guardianship”. This term has changed to encourage greater respect for adults who need help to manage their personal and financial interests.

A representative must use the least intrusive and least restrictive steps possible to help an adult in need of representation manage their affairs. This means that the representative must not interfere with the privacy and freedom of the adult in need of representation more than is absolutely necessary, and must consult with the adult before making decisions and keep them informed.

A representative is a person who has the legal right to make decisions for another adult. A judge appoints a representative for an adult who does not have capacity to make some or all decisions. The judge also approves a representation order and a representation plan. These tell what decisions the representative can make and what actions they can take for the adult. A representation order may give a representative authority to make only a single decision on behalf of the adult, or the order might cover a number of decisions.

A representative can only make decisions for the adult that the adult cannot make for themselves. A representative may have authority to manage finances or to make health and other personal care decisions for the adult in need of representation. One example of a personal care decision is what social activities the adult will take part in. If the adult works, a personal care decision could be where and what type of work the adult will do.

A representative must:

• encourage the adult to make decisions whenever possible
• follow the adult’s prior instructions whenever possible
• follow the wishes of the adult whenever possible
• respect the adult’s beliefs and values
• only make decisions for the adult that the adult cannot make for themselves
• tell the adult about any decision they need to make or have made on the adult’s behalf
• protect the adult’s well-being and financial interests in any decision they make on the adult’s behalf
• act in good faith, and
• always make the least restrictive and least intrusive decisions possible.

A representative must not:

• make a decision the adult could make on their own
• make secret profits
• delegate authority to another person
• act for the benefit of anyone other than the adult
• sell or give away real estate belonging to the adult without a court order
• make or change the adult’s will
• start a divorce or change parenting arrangements, parenting time, contact or interactions with a child without a court order
• agree to adoption or guardianship of a child without a court order
• agree to tissue donation from the adult without a court order
• agree to a treatment, procedure or therapy that uses aversive stimulus without a court order
• give away anything that belongs to the adult
• represent themselves as the adult in any communication.

A representative may give gifts to the adult’s loved ones out of the adult’s property only if the court agrees.

A representative must keep good records of all financial decisions. If the representation ends for any reason, the representative must give the court records about financial decisions. The judge can order the representative to give those records or report to the court at any time.

Representatives must always protect the adult’s privacy and personal information.

A representative who thinks the adult’s ability to make decisions has changed must have the adult’s capacity reassessed and must apply to court to have the representation order reviewed if the adult’s ability to make decisions changes.

The Nova Scotia government has a Guide to Applying for a Review of a Guardianship Order or a Representation Order. It is on the NS Public Trustee website.

An adult may need a representative if they do not have the capacity to make some or all of their own decisions. The lack of capacity may be temporary or permanent.  This might happen when a person:

• is in a coma after an accident
• has an illness like Alzheimer’s disease
• has a mental disability that stops them from managing their lives
• has a mental disability as the result of accident or injury.

See the Nova Scotia government’s Guide to Adult Representation, under 'Is Representation the Best Option', for information about some things to consider in deciding whether a representation order is needed. The guide is on the NS Public Trustee website at novascotia.ca/just/pto/adult-capacity-decision.asp

The court cannot appoint a representative for any area already covered by a current, valid personal directive or enduring power of attorney. See the pages on Health Care Treatment and Consent and Power of Attorney for more information.

Capacity is the ability to do or understand something. In decision-making, capacity means you can understand:

• the information needed to make a decision, and
• what could happen because of a decision.

For example, you have capacity to agree to medical treatment only if you understand how the treatment could be good for you or bad for you.

All adults are presumed to have capacity to have capacity unless there is clear evidence to prove this is not the case.

Adults have a right to make their own decisions. This includes the right to make decisions that friends or family might think are risky or unwise. Just because someone made a bad decision, or decisions others might disagree with, does not mean they do not have capacity to make their own decisions.

A person can have different capacity at different times.

For example, you might be able to understand and make decisions about your health care, but not decisions about your money or property.

The way an adult communicates does not tell people whether they have capacity. You may need help from a translator, interpreter, family member, friend, or technology to tell people about your wishes. This does not mean that you cannot understand information or make decisions.

You can find this information, and more in The Legal Information Society of Nova Scotia’s book, It’s In Your Hands. For the chapter Adult Capacity and Decision Making, click here. 

A representative for an adult is appointed by a judge of the Supreme Court of Nova Scotia. The judge will hold a hearing to decide if the adult has the capacity to make important decisions for themselves.

When deciding if a representative should be appointed, the court will consider:

• the adult's wishes
• a capacity assessment report
• any other evidence about the adult's capacity
• a representation plan
• any power of attorney made by the adult
• any Personal Directive made by the adult
• the areas where the adult may need help
• the value and type of property the adult owns
• any other evidence the court thinks is important.

Any adult can apply to be the representative decision maker for an adult who does not have capacity to make important decisions on their own. A court will appoint a representative only when a judge is sure that the adult needs one because they do not have capacity to make certain decisions, and that the proposed representative:

• agrees to be appointed
• will fulfill their duties under the Adult Capacity and Decision-making Act, and
• is suitable to act as the adult's representative.

The judge will also think about:

• the adult's views and wishes
• the relationship between the adult and the proposed representative where relevant to a representative's duties
• things that might make it harder for a judge to oversee a representation order, such as if a proposed representative lives outside Nova Scotia
• the proposed representative's ability to carry out their responsibilities
• anything else the judge feels is relevant.

The court can appoint a trust company or the Nova Scotia Public Trustee as a representative. A trust company can only deal with a person’s finances. For more information, contact the Office of the Public Trustee.

A court may appoint more than one representative to share the responsibility (jointly) or to have separate responsibilities for decision-making. 

If two or more representatives are appointed to act together, the representation order must include a way to resolve any disputes that might come up between the representatives when carrying out their duties.

Where the representatives act jointly and one of them is no longer able to carry out their responsibilities, the remaining representative alone can continue to carry out their full responsibilities. 

The Nova Scotia government has a Guide to Adult Representation  that gives information on applying to become a representative.  It is on the Nova Scotia Public Trustee website.

It is important to know whether the adult has an enduring Power of Attorney and/or Personal Directive in place.  If those documents are in place a representation order may not be needed.

If you have chosen to become a representative for an adult, you will need to apply to the Supreme Court of Nova Scotia.  The process takes time and is technical.  It is a good idea to talk with a lawyer, even for a short time.

You must fill out several forms to apply to be a representative. You must file the forms with the Supreme Court of Nova Scotia.  The forms you need are listed below.  You can get them from the Supreme Court of Nova Scotia, or online at courts.ns.ca, in the Nova Scotia Civil Procedure Rules, which are the rules about forms and processes used at the Supreme Court of Nova Scotia.  

You must file:

1. A Notice of Application in Chambers – Civil Procedure Form 5.03 , under Rule 5.03 (“Chambers” is where judges have shorter hearings)
2. A Supporting Affidavit (a sworn or affirmed statement explaining why you believe the adult needs a representative) – Civil Procedure Form 39.08, under Rule 39.08.  See the Guide to Adult Representation for information about what to include in the affidavit.
3. A draft order for the judge to sign if they agree to appoint you as representative – Civil Procedure Form 78.05, under Rule 78.05

Instruction Sheets are on the Nova Scotia Courts website at courts.ns.ca/supreme_court/nssc_forms.htm.

You must also give the court these documents:

1. A letter to the court explaining why you believe the adult needs a representative (sometimes called “a brief” or a “written submission”)
2. A capacity assessment report from an approved health professional (medical doctor, psychologist, other trained capacity assessor) unless the adult in need of representation has refused or is unable to undergo an assessment
3. A representation plan
4. A vulnerable sector check (a background check completed by police)

You can find the forms for a capacity assessment report and representation plan on the Public Trustee’s website novascotia.ca/just/pto/forms.asp under Adult Capacity and Decision-making.

When you have filled out all of these documents,  take them to the court to be filed and issued. This means that the court stamps them to show that they have been added to court records. You must file enough copies of each of the documents to serve each of the respondents with their own copy, as well as two copies for the court. The court will give you an issued copy of the application documents.  The documents must then be personally served (delivered in person) to the adult and anyone else who is a respondent (named in) on the Notice of Application. Once the application documents have been served, you, or the person who served the documents, must fill out an Affidavit of Service – Civil Procedure Form 31.05 under Rule 31.05, and file it with the court as proof of service.

You also need to make sure a copy of the Notice of Application is sent to other interested persons, including:

• the adult’s spouse, parents, children 19 or over, and siblings 19 or over
• a person appointed to make decisions for the adult under the old Incompetent Persons Act
• a delegate for the adult appointed by a personal directive
• an attorney for the adult appointed by a power of attorney
• the director of a care facility, such as a nursing home, if the adult lives in one.

You must deliver the application documents to these people at least 25 business days before the date of the hearing. Remember to allow for the day when the documents are delivered or sent, the day of the hearing, weekends and holidays.

If you are concerned that someone on the above list should not be given notice of the application ahead of time, you may ask the court for permission not to notify them. You should ask the court about it when you file the application.

The adult or any other person who might be affected by the application may not agree with your application.  If they do not agree they may file a Notice of Contest (Chambers Application) with the court (Form 5.04 for Contesting an Application on Notice in Chambers, under Rule 5.04).

Going to court nearly always involves costs.  These are listed below.

Legal fees

A lawyer will charge a fee to prepare a representation application and appear in court.  This work will likely cost $5,000 to $6,000.  Some lawyers may charge more or less. You can also contact Nova Scotia Legal Aid to see if you qualify for free legal help.  You can apply to court without a lawyer if you choose to or cannot pay a lawyer.

Court filing fee

It will cost $246.80 (March 2023) to file an Application with the Supreme Court of Nova Scotia. This includes tax and the cost of having the document issued (stamped) by the court.

Bond

If you are appointed as a representative, you must pay a bond (collateral) to the Supreme Court, to be held in trust. This is done so that the adult in need of representation is protected financially if you manage the adult’s money or property badly. The bond will be equal to 1.25 times the value of any property you have control over as representative.

If you cannot afford to pay the bond, you can get a guarantor or co-signer to help you pay the bond. This could be another friend or family member, or a surety company. You might not have to pay the bond if you are not granted authority over the adult’s financial matters, if there are other safety measures in place to protect the adult, or if the value of the adult’s property is worth less than $3,000.  The court may want some other assurances that the adult’s financial interests will be protected if their financial situation changes. 

Vulnerable sector check

It costs about $50 to apply for a criminal record check/vulnerable sector check.  Contact your local police or RCMP detachment for information.

This check is only valid if it was done within two months of your court date. Be careful not to get it done too early or you may be required to get the check done again at your own expense. 

Capacity assessment

Most health professionals will charge a fee to do a capacity assessment report.

You may apply to the Public Trustee’s Office for help paying some or all of the costs of a capacity assessment.  You will have to show that it would be a financial hardship for the adult or you to pay for it. The Public Trustee's Office may pay up to $500 for an assessment for personal care or financial matters, or $700 for an assessment of both personal care and financial matters. The cost of the assessment might be higher than the amount available through the Public Trustee. Talk with the assessor about the total cost before they start. 

A capacity assessment report can be done by an approved health professional, including a medical doctor or registered psychologist. The list of approved assessors also includes nurse practitioners or registered nurses, occupational therapists, and social workers who have completed training developed by the Nova Scotia Public Trustee’s Office.  A list of approved assessors can be found here: https://novascotia.ca/just/pto/forms/Adult-Capacity-and-Decision-making-Act-Allied-Health-Roster.pdf, or contact the Nova Scotia Public Trustee's Office.

The Nova Scotia government has information for Adults who may Need Representation.  It is on the NS Public Trustee website.

In Nova Scotia all adults have the capacity to make their own decisions, unless there is clear proof that they cannot.

Adults have the right to:

• make their own decisions
• make decisions others might see as risky or unwise
• communicate in whatever way that makes them understood. 

An adult has the right to the least restrictive and least intrusive options. For example, an adult should be offered support so they can make their own decisions whenever possible. An adult has the right to use whatever support they need to communicate or make decisions. This might include using an interpreter or having help from a friend, family member, or other support person. 

An adult who is the subject of a representation application has the right to have a lawyer. If they cannot afford to hire a lawyer, they can apply to Nova Scotia Legal Aid, or call Legal Aid at 1-877-420-6578. 

In court, the adult has the right to be at the court hearing, to speak to the judge, and to give information to the court. If the adult does not agree with the judge’s decision, they can appeal the decision at the Nova Scotia Court of Appeal.

An adult who needs a representative has the right to apply to the court to review the representation order if their ability to make decisions changes. For example, if an adult can again make their own decisions, they can apply to the court to have their representation order reviewed, and to ask to have their representative decision-maker removed.

An adult does not have to take part in a capacity assessment.

If the adult refuses to be assessed or decides to end an assessment in progress, the health professional must stop the assessment and notify the person applying for representation that the adult has decided not to be assessed. Only a court can order a person to participate in an assessment if they refuse to cooperate. Family members and friends cannot make an adult cooperate with an assessment.

However, if a health professional who has been trained as an assessor believes the adult may need a representative, the health professional can assess the adult's ability to make decisions even without the adult's cooperation. The assessor can use information from other sources like family and friends. The assessor can also ask for the adult's personal health information. The assessor might need the adult's financial information to write the assessment report. If so, the person who is applying to be a representative must ask the court for permission to get that information.

When a capacity assessment is done, the assessor must tell the adult the results and give the adult a copy of the report.

Representation ends when something important changes for the adult who has a representative, or for the representative.

The adult may regain capacity. This means that they can make important decisions again. This could happen, for example, as they get better after a stroke.

If an adult regains the ability to make decisions, they can apply to the court to have the representative removed. If an adult regains capacity, the representative has the responsibility to apply to court to ask the court to review the representation order and to tell the court of the change in the adult’s capacity. If the review finds a representation order is no longer needed, the representative must give financial records to the court and return all possessions to the adult who has regained capacity.

Representation can also end if the representative:

• stops acting as a good representative
• has a mental or physical disability
• moves out of the province permanently
• resigns as representative; or
• dies.

If a representative dies, can no longer act, or refuses to act, a judge will appoint a new representative if the adult still needs one. If there is no back-up representative who can act for the adult, the Public Trustee may act as representative until another can be appointed.

If a representative wants to resign, they must apply to court to ask to be removed from the representation order.

You may have concerns about a guardian, representative, or adult who has a representative decision-maker.  If you have, you can apply to the Supreme Court of Nova Scotia to ask a judge to review the representation order.

You can do this if you are an appointed guardian or representative, or an adult who has a representative, or a family member or a friend.

You can ask for a review if you are an adult with a guardian or representative, but you can make important decisions for yourself or believe that the representative is not doing their job right.

Some other reasons to ask the court for a review are:

• If you were appointed as a guardian or representative and you feel that the adult can make some or all their own decisions, or something else significant has changed in the adult's life
• If you were appointed as a guardian or representative and you are no longer able to do the job
• If the court ordered you to return for a review after a certain length of time.

For more information, see the Guide to Applying for a Review of a Guardianship Order or a Representation Order on the Nova Scotia Public Trustee website.

You can complain to the Public Trustee if you think that a representative is not doing their job right.  Anyone can also complain to the Public Trustee if they are concerned about the decisions of a guardian under the Incompetent Persons Act.  The Public Trustee will look into the complaint and may refer the matter to other agencies, such as police or the Department of Opportunities and Social Development.

You can use an online form to make a Complaint Respecting a Representative on the Public Trustee's website, or call the Nova Scotia Public Trustee at 902-424-7760.

Anyone who has concerns about a representative may also apply to court to have a representation order reviewed.   See the Nova Scotia government's Applying for a Review guide for more information.

As a representative, you may be paid for out-of-pocket costs related to carrying out your duties. This money comes from the money or property of the adult you represent.

You may also ask the court to approve taking a fee from the adult’s money or property. You should know that no pay may come from government benefits or support paid to the adult.

You must ask the court to include this compensation when you apply to become the adult’s representative. The court may order up to $15 per hour for managing health care or personal care matters. If you are managing financial matters, the court may allow you to receive up to 2.5 percent of money the adult gets (for example interest earned) while you are their representative.

Sometimes when a person can no longer make their own decisions, someone else will be able to help them. This person is usually a spouse, adult child, or other close family member, or even a close friend.

Informal arrangements work for many people, such as through a joint bank account where the adult and the person helping them are joint account holders. If there are social assistance payments to be managed, an adult may have a trustee assigned by the government Department responsible for those payments. 

If informal arrangements work, you do not have to go to court.

If the adult has real estate or financial assets that need to be managed, though, there can be problems.  For example, in an informal arrangement, you will not be able to deal with investments unless the person previously appointed you as attorney in an enduring power of attorney. For more information, see the section on Powers of Attorney.

Yes. While you have capacity to make decisions, you can arrange for someone to manage your financial affairs. This legal document is called an Enduring Power of Attorney.  You can also name someone to deal with the Canada Revenue Agency on your behalf.

You can also arrange for someone to manage your health and personal care if you lose capacity and are unable to make your own decisions. This legal document is called a Personal Directive.

You can also name a representative to deal with the Canada Revenue Agency on your behalf. 

• Public Trustee
• Nova Scotia Legal Aid
• A lawyer in private practice who does estates work, including adult representation
• Contact the Legal Information Society of Nova Scotia.

any act or neglect to act which threatens the health, security, or well-being of a person. Abuse of older adults is sometimes also called senior abuse or elder abuse. Abuse can be acts, words, or neglect.

a privilege which recognizes the right of and benefit to a child to spend time with an individual such as a parent who is not living with the child. The term is no longer used in family law.  See parenting time.

a court order that provides for contact between a dependent and the person applying for contact, such as visits, phone calls, emails, mail.  The term access is no longer used in family law.

the act of proving what one has done to meet one’s responsibilities.  For example, and attorney must account for steps they take on behalf of the donor of a power of attorney.

When a person dies without a will, there is no executor to see that everything is handled properly.  Or sometimes a will does not name an executor, or none of the executors named in a will are able to act. In these cases, someone needs to fill the executor’s role and see that everything is handled properly. This person is called an administrator. The court uses the general term ‘personal representative’ for a person appointed as an administrator.   

in Nova Scotia, the age of adulthood is 19. It is also called the age of majority.

the Nova Scotia law that allows a judge to appoint a representative for an adult who cannot make some or all of their own decisions.

a legal statement that is sworn or affirmed before a Commissioner of Oaths or a notary public.

a statement sworn by a witness about the signing of a document.

a doctor or psychologist has the power to assess an adult’s capacity under the Adult Capacity and Decision-making Act. With training, an occupational therapist, nurse, social worker, or other qualified health care professional can assess capacity.

A legal term for property. This can mean anything of value, such as a house, vehicle, or bank account.

the act of intentionally killing oneself with the help of another person

the person who receives the authority to act on another’s behalf under power of attorney. This person is not necessarily a lawyer.

a person who receives property through a will as an inheritance. The plural is beneficiaries. Also called an heir.

a type of insurance policy.

to be competent to perform a specific task, such as writing one’s own will. Also see testamentary capacity. In decision-making, capacity means generally that you can understand the information needed to make a decision, and what could happen because of a decision.

testing by a health care professional (assessor) to find out if an adult has the ability to make important decisions on their own.

a report by a health care professional (assessor) to explain whether an adult can make important decisions on their own. The report may also include information from other sources, like family and friends.

section of a legal document, for example, of a will.

a legal document written to change part of an existing will. It is always better to do a new will instead of a codicil.

a written agreement between a couple who are living or plan to live together which sets out their rights and responsibilities to one another.

an officer who has the authority to administer oaths on legal documents.

a person in an unregistered live-in ‘marriage-like’ relationship with another person. See common law relationship.

an unregistered, live-in ‘marriage-like’ relationship between two people. They are not married but they share a home, refer to themselves in public as spouses or partners, and share things like bills and other finances. See registered domestic partnership.

a legal term which means to be of sound mind and able to make reasonable decisions. Also see incompetent person.

a process in family court for negotiating an agreement between two parties with assistance from a conciliator talking to the parties separately.

Before engaging in sexual activity with someone, the law requires that you take reasonable steps to be sure the other person agrees freely and voluntarily.

the name of the agreement reached between two parties when the issue is resolved using mediation or conciliation.

the intentional deception of a person who buys something.

the time a child spends with someone other than their parent or guardian because of a court order or agreement. This can be a grandparent, or anyone else who is close to the child.

a person who has legal care and control of property that belongs to someone else, and to keep it safe.

having the responsibility to care for the child, and to make the major decisions about the child’s health, well-being, and upbringing. Custody can also mean who the child lives with. The term custody is no longer used in family law. See decision-making responsibility, contact, interaction, parenting time.

when someone uses electronic communication, like email, text messaging, or social media, to harm your health or well-being.

a general term describing who is responsible to make significant decisions for and about a child. For example, this includes decisions about a child’s health, education, culture, language, religion, spirituality, and significant extracurricular activities. This has traditionally been called ‘custody’. The term 'custody' is no longer used. See also parenting time, contact, interaction.

the person legally authorized to make decisions for another person, specifically under a personal directive for health and other personal care decisions. Also informally called a proxy.

a person another person has a legal obligation to support, such as a spouse or a child.

see registered domestic partnership.

the person giving someone else the authority to act on their behalf, particularly under a power of attorney document.

see senior abuse, abuse.

a legal document which authorizes a person, called an attorney, or company to act on behalf of another person, even if the person loses capacity. One type of power of attorney.

all of the property owned by a deceased person when they die. It includes land, vehicles, investments, cash, jewellery, and furniture. A person’s estate is often called their ‘property’.

an act taken by one person to end the life of another to relieve that person’s suffering.

the formal signing of a legal document.

the person named in the will of a person who has died. The executor is responsible for seeing that everything is handled properly.  They gather assets of the deceased, pay debts and taxes, and distribute the remaining money and property according to instructions in the will. The court uses the general term ‘personal representative’ for a person appointed as an executor.

  intentional deception. Also called a scam.

a person who commits a fraud.

a power of attorney that gives your full authority to your attorney.

a person who had applied to the court for guardianship of an adult under the old Incompetent Persons Act. Now considered to be a representative under the Adult Capacity and Decision-making Act. A guardian made all decisions for an adult under their care; a representative makes only the decisions the adult cannot make. Also, a guardian is also the legal term for someone who has legal responsibility for the personal or financial interests of a minor (person under 19) child.

any examination, procedure, service, or treatment that is done for a health-related purpose, including a therapeutic, preventative, palliative, or diagnostic purpose. It includes a course of health care or a care plan.

a handwritten will signed and written by the testator but not witnessed.

the illegal act of using personal information, for example personal identification numbers or Social Insurance Numbers, to steal from a person.

anyone who is legally incapable of managing their own affairs because of mental infirmity. This may be because of an accident, disease, or psychiatric illness.

a person’s expression of wishes for health care measures they want taken for them if they become unable to express their wishes themselves, as laid out in a personal directive.

communicating with a child outside of parenting time or contact time. Includes phone calls, emails, or letters, sending gifts or cards, attending the child’s school activities or other activities, receiving copies of report cards or school photos, video chats.

the state of dying without leaving a will.

to die without a will.

a listing of all of a person’s possessions, such as for the purpose of probating a will.

a type of ownership of property in which each person has equal ownership, such as a house or bank account. The owners have equal right to use and control the property. If one owner wants to sell the property, any other owners must agree. See tenancy in common.

a representative must not interfere with the privacy and freedom of an adult in need of representation unless absolutely necessary.

a form of instruction directive in which a person sets out their wishes for health care measures they do or do not want if they become unable to communicate. In Nova Scotia the term used is a personal healthcare directive or personal directive.

a written agreement between two persons who are married to one another. Sets out the details of property ownership, how property will be divided upon separation, and any support obligation between the spouses.

a process for using a neutral third party (the mediator) to help two parties come to an agreement.

a person who helps negotiate agreement between two parties. See mediation.

an agreement to a medical treatment or procedure. It can be a signed document which shows agreement to your own medical treatment or sometimes it can be verbal or implied; for example, when you roll up your sleeve to give a blood sample.

the failure to provide a person to whom you owe responsibility with what they need, for example adequate food, medical attention, shelter, assistance, care, or clothing. A form of abuse.

a person, usually a lawyer, who serves the public in drawing up and certifying legal documents and authenticating documents as valid.

a document authorized and signed by a judge that is the law between the parties to the order.

see power of attorney.

the time a child spends with a parent or guardian because of a court order or agreement. A term used in family law. See also, contact.

the placement of a child in care which resembles that of wise and conscientious parents.

decisions about what a person will eat or drink, where they will live, what they will wear, what activities they will do, and what support they will need to live. Includes what health care treatment they get, such as tests, procedures, or services to keep them healthy.

a type of advance health care directive which allows you to give instructions and/or authorize someone else to make decisions about personal care and consent to medical treatment on your behalf. See also, delegate.

an executor of a will or administrator or an estate.

a scam used by identity thieves, such as an email which threatens serious consequences if you don’t immediately update personal electronic information.

a legal process to deal with a person’s estate after they die.

a legal term which indicates all possessions owned by a person, not just real estate.

a legal document in which you give another person authority to act on your behalf during your lifetime. Also called ordinary power of attorney. See also, donor and attorney.

a person who acts as the decision maker. If a person becomes unable to consent to treatment, a proxy has the authority to make health care decisions for that person. See also, delegate.

the appointment of a person to act as the decision maker, or proxy, as laid out in your advance health care directive, if you become unable to consent to treatment. See also, instructional directive.

the provincial office which has authority to act for people in certain situations if they are unable to care for their own affairs, for example, mentally incompetent persons.

any two people who are living in a common law relationship can register their relationship with the Nova Scotia government (Vital Statistics) as a registered domestic partnership. This gives common law partners many, but not all, of the same rights as married spouses.

a refusal to act or fulfill a function to which you have been named, such as refusing to act as an executor.

a person with legal authority by court order (representation order) to make decisions for another adult under the Adult Capacity and Decision-making Act.

a court order that appoints someone to be a representative under the Adult Capacity and Decision-making Act.

a plan to manage the well-being and financial matters of an adult who cannot manage those matters for themselves.

any property remaining after funeral expenses, debts, taxes and costs of managing an estate have been paid, and any specific gifts in a will have been paid or given to one or more beneficiaries.

an advance fee paid to a professional who will act for you, such as a lawyer.

a legal term which means to cancel an existing legal document, such as a will.

see fraud.

getting the court’s permission to make an application to ask it for something, such as decision-making responsibility.

any action which threatens the health, security, or well-being of an older person. Also called elder abuse or abuse of older adults.

properly notify a person of a court proceeding. Personal service is where someone hand delivers the court documents directly to that person to notify them of a court proceeding. Personal service cannot be done my mail, courier, fax or registered mail.

a tactic used by identity thieves who watch as you punch your access codes and passwords on ATMs, debit machines, telephones, and computers.

a power of attorney that limits exactly what authority you give to your attorney.

two people who are married to each other.

a specialized power of attorney document which says what future event will cause it to come or “spring” into effect. Sometimes also called ‘contingent’ power of attorney. Also see power of attorney.

the person or company which guarantees to pay money or perform acts if a bond fails.

a type of joint ownership of property in which two or more people each own part of a shared asset. Their shares may not have the same value. Each owner can use their share how they like or sell it without permission from any other owner. See joint tenancy.

to be mentally competent to make a will. Also called “being of sound mind.” Also see testator.

a person who makes their will.

a corporation organized to perform legal duties, such as a trustee in managing estates.

someone who has legal responsibility to manage something, such as property, because of a court order or other legal document.

court-appointed trustee who administers the affairs of a bankrupt company or person. Also called Licensed Insolvency Trustee.

a situation in which someone exerts an inappropriate amount of pressure on another person. For example: forcing someone to write a will.

a legal document in which you say what you want done with your property after death.