What is a will?

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.

What is an estate?

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.

Why make a will?

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.

What happens if I die without a will?

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. 

Wills for persons registered under the Indian Act who usually live on reserve

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.

Do I need a will if my partner or spouse has one?

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.

Do I have to hire a lawyer to write my will?

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.

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.

What does it cost for a lawyer to do a will?

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.

Common parts of a will

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.

Legal requirements of a will

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.

What is 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.”

Can I choose who gets my property?

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.

Who looks after my will when I die?

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.

Who should I choose as an executor?

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.

Can I choose a trust company to act as my executor?

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.

Can the person I choose as executor refuse the position?

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. 

Can I appoint joint executors?

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.

What does the executor do after I die?

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.

What is a holograph 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.

What happens if my intentions are unclear in my will?

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.

Should I put my burial wishes in my will?

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.

Things to do after you make your will

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.

Can I change my will?

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.

Cancelling your will

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.

Is a will made outside Nova Scotia valid in Nova Scotia?

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.

Where can I get more information on making a will?

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

Where can I get more information on probate?

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

Finding a lawyer who does wills

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.

What is a power of attorney?

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.

Why would I need a power of attorney?

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.

Powers of attorney for persons registered under the Indian Act who ordinarily live on reserve

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.

Do I need power of attorney if I have a will?

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.

Does power of attorney cover health and other personal care decisions?

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.

What is an enduring power of attorney?

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. 

When does an enduring power of attorney take effect?

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. 

What is a springing or contingent power of attorney?

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.

What happens if I lose capacity and I don't have an enduring power of attorney?

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.

Should I have an ordinary power of attorney or an enduring one?

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.

Who can make a 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.

Other legal requirements to make a valid power of attorney

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.

What is 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.

Does the attorney have to sign the document?

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).

Do I need a lawyer to write a power of attorney?

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.

How much will it cost?

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.

Who can be my attorney?

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.

Who can't be my 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.

Can I name more than one 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.

Name at least one back-up attorney

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 your chosen attorney(s) about the job

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.

Who makes decisions and how are they made?

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.

How much power can I give my attorney?

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.

There are always some things your attorney cannot do

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.

Do I have to pay my attorney?

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.

Your attorney's legal duties and responsibilities to you

Basics about the risk of abuse

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.

Name a monitor

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.

Other ways to prevent misuse of a power of attorney

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.

What can I do if my attorney misuses the power of attorney?

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.

Can I change my power of attorney?

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.

How does a power of attorney end?

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

Do powers of attorney have to be registered in Nova Scotia?

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.

Is a power of attorney made outside Nova Scotia valid here?

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.

Is a power of attorney made in Nova Scotia valid outside Nova Scotia?

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.

I made a power of attorney before July 5, 2022. Do I need to replace it?

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.

Where should I keep my power of attorney?

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.

Where can I get more information on power of attorney?

• 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.