What is abuse of older adults?

Abuse of older adults is any action that threatens the health, safety, or well-being of an older person. It is also called senior abuse or elder abuse. It includes both abuse and neglect.

The most common types of abuse are listed below.

Financial abuse is when someone takes your money or does not let you have your money or misuses your money. They might steal cash, cheques, or savings. They might make threats to not visit or not allow your grandchildren to visit unless you give them money or gifts. They might pretend they are you to get your money from your bank account. Or they might misuse money, property, or authority such as a power of attorney. (For more information on financial abuse, see Powers of Attorney.)

Physical abuse is when someone hurts you by punching, kicking, slapping, shaking, burning, scalding with hot water, or in other ways. It also includes using physical restraints or giving the wrong medication.

Sexual abuse is any form of sexual activity with a person who does not want that activity (without consent). Some examples are sexual comments, intercourse, touching or fondling, or kissing.

Emotional, psychological or mental abuse is treating a person in ways that make them feel bad. It can include treating you like a child, making hurtful comments, continually criticizing or insulting, controlling or frightening you, locking you in a room, stopping you from having visitors, or threatening to put you in an institution.

Neglect is when an abuser does not give you your basic needs, like food, medical care, shelter, care, or clothing. Sometimes, a family member or caregiver might neglect the person they are caring for. “Self-neglect” is when you cannot or will not care properly for yourself and do not want and refuse to have someone else help you.

Denial of rights is when an abuser keeps you from doing what you have the right to do. They might keep important information from you. They might open your mail without your permission. They might restrain you, which means holding or tying you down. Or they might confine you, which means keep you in a place you do not want to be.

Cyber-abuse is when someone harasses you online, by email or by text message. They might share private photos of you without your consent, or they might harass you online or on social media.

Sometimes they encourage people to commit suicide.

Sadly, most abuse of older adults comes from a family member, friend, or caregiver.

I am mentally and physically competent and I am being financially abused Where can I go for help

Financial abuse can happen to anyone. It is the most commonly reported form of abuse of older adults. So remember, you are not alone.

Financial abuse may include the following:

• manipulating you or coercion to gain access to your money or property (for example, forcing you to change your will or sign a contract)
• theft (including from joint bank accounts)
• forgery (for example someone signing your name to cash a cheque) • fraud (someone tricking you to get money from you)
• abusing your power of attorney

You should talk to the police and to a lawyer. Financial abuse such as theft, theft by a person holding power of attorney, forgery, and fraud are crimes under the Criminal Code of Canada.

Remember to keep detailed records. You might need records for a police investigation or if you go to court. Records can include a diary of events, copies of cancelled cheques, and copies of legal documents.

Also see the sections Scams, Identity Theft and Other Fraud and Powers of Attorney.

What Nova Scotia laws protect older adults from abuse?

Nova Scotia has four key laws that protect older adults from abuse. They are:

• the Protection for Persons in Care Act
• the Adult Protection Act
• the Domestic Violence Intervention Act
• the Intimate Images and Cyber-protection Act.

The Criminal Code of Canada also protects older adults across the country.

How are seniors in health care facilities protected from abuse?

Abuse can happen to patients and residents of health care facilities. Nova Scotia’s Protection for Persons in Care Act helps to protect patients and residents 16 years of age and older from abuse.

The facilities include:

• hospitals
• residential care facilities
• nursing homes
• homes for the aged
• homes for people with disabilities
• group homes
• residential centres

A service provider carrying out their duties and following recognized standards and practices and their policies and procedures are not abusing their patients or residents.

Health care facility staff must protect patients and residents from abuse and keep them reasonably safe. If you report abuse to them, or if they suspect or see abuse, they must report it to the Department of Health and Wellness. Anyone else can report suspected abuse by calling 1-800-225-7225.

You can find more information on the Department of Health and Wellness website under Protection for Persons in Care Act.

What kinds of abuse are older adults in health facilities protected against?

Under the Protection for Persons in Care Act, abuse may be any of the following:

• physical
• sexual
• emotional
• misuse of medication
• neglect
• misuse or theft of money or possessions.

The act does not protect against all financial abuse.  It protects against misuse or theft of money or possessions belonging to a patient or resident in the health facility.

If you believe that a senior in care is the victim of other financial abuse and cannot look after their affairs, you should talk with them. You might also talk to someone who is close to the senior, like a family member, who may be able to help the senior.

You can also call the police. Some financial abuse, like fraud or theft, is a crime. A senior who is being financially abused should talk to the police and to a lawyer.

What happens if I report abuse of a person in a care facility?

If you believe a person in a care facility is being abused, you should report the abuse to the Department of Health and Wellness. The Minister looks into the report to decide if a formal investigation is needed. If so, the minister appoints someone to investigate.

The department will tell the patient or resident that someone has reported abuse and that the department will investigate the situation. The investigator will write a report. They might make recommendations to protect the patient or resident or to investigate the matter more.

Anyone can also contact the police: the senior, a family member, an adult protection worker, a neighbour, or a friend.

Will the police be involved?

The police will be involved if there is proof that the abuse is a criminal offence. This would happen if the investigator found signs of a crime like physical assault, sexual assault, theft, or fraud. If a caregiver failed to care for a senior, they could be charged with neglect.

The police will investigate and decide whether to lay charges against the person accused of abuse. They will lay charges only if they have enough proof to convict the abuser in court. Often a victim does not want to report abuse or to give evidence in court. The victim may be afraid of the abuser or the abuser might be someone the victim loves or likes. Fear is the major reason abuse is not reported. Sometimes the victim is embarrassed or ashamed about the abuse. Abuse is never the victim’s fault.

How are seniors protected from abuse where they live?

Some adults live in their own homes even though they no longer have the physical or mental ability to care for themselves, or they might live with family members. The Adult Protection Act helps to protect them from physical, sexual, and mental abuse as well as from neglect. It does not protect them from financial abuse.

The Adult Protection Act protects adults who are “in need of protection.” This means a person who is 16 years old or older and who:

• has a physical or mental disability
• is abused or neglected where they live
• cannot protect themselves from the abuse or neglect • refuses, delays, or cannot provide for their own care.

The Adult Protection Act does not aim to punish abusers.

Does the Adult Protection Act protect older adults against financial abuse?

Sometimes, a person physically abuses or neglects a senior to get money or property or for access to their bank account. If someone reports this abuse to Adult Protection Services, they will investigate. The investigation and steps taken by Adult Protection Services to protect a senior from the physical abuse or neglect might also stop the financial abuse.

If you believe an older adult is being financially abused and is unable to look after their affairs, you should talk with them, even if there is no physical abuse or neglect. You might also talk to a trusted person who is close to the senior (such as a family member) who may be able to help.

You can also contact the Public Trustee or the police. The Nova Scotia Public Trustee Office has the right to act for certain people who cannot take care of their own affairs. The Public Trustee will look into your complaint and may talk with the police or the Department of Community Services. You can get more information on the Public Trustee’s website at novascotia.ca/just/pto/ or call the Nova Scotia Public Trustee at 902-424-7760.

Some financial abuse is a crime, for example, stealing, forging a signature, or misusing a power of attorney. A senior who is being financially abused should talk to the police and to a lawyer.

For more information, see the sections on the Public Trustee, Adult Capacity and Decision-making, and Powers of Attorney (under “What can I do if my attorney misuses the power of attorney?”).

How do I report abuse or neglect of a senior in their home or community?

You can report abuse to the Department of Health and Wellness, Adult Protection Services, or you can report it to local police. You can call Adult Protection Services toll-free at 1-800-225-7225.

Often community agencies that have contact with a senior report abuse. Sometimes the police or health care professionals do. It does not matter if the information is confidential or privileged— if they know it, they must report it. Relatives, neighbours, and friends also report abuse.

You do not have to be sure that abuse is taking place if you want to make a report, but you must have good reason to believe that the senior needs some protection.

If you are wrong about the abuse, you are protected from being sued if you had good reason to make the report. Someone can sue you only if you made your report without good reason.

If you report abuse, your identity is confidential. However, if the case goes to court, you may have to give evidence. Then your identity would become known.

It is an offence not to report abuse of an adult who needs protection. Anyone who fails to report could be charged. If convicted, the maximum penalty is a fine of up to $1,000 or prison for up to one year, or both.

What happens if I report abuse of a senior in their home?

If you report abuse of a senior in their home or community, Adult Protection Services must find out if there is reason to believe that the senior is in need of protection. It may investigate in one of the following ways:

• visiting the senior’s home
• talking with the senior
• meeting with the person accused of the abuse
• meeting with you, as the person who reported the abuse
• asking a doctor to assess the senior’s level of capacity, their need for care and attention, and whether they have been abused
• talking with the senior’s family, doctor, caregivers, and neighbours.

If the investigation shows that the senior can make competent decisions and that they are not refusing help because of threats, then Adult Protection Service will end its investigation. It may suggest services that the senior can use, but it cannot force the senior to use these services. If adult protection workers find proof that a senior needs protection, they must help the senior get services to make things better. If there has been a criminal offence, the Adult Protection Service must report it to the police.

What kind of services does Adult Protection provide?

The Adult Protection Services does not provide services itself. It helps the adult or the adult’s family find the services they need and can get in the community. Services can include home help or meals on wheels. They might talk with the senior about living somewhere else, such as shared housing, seniors’ apartments, and homes for special care. If the senior can have services in their own home, that will be done.

Who pays for these services?

The adult is expected to pay for these services if they can afford to. Some privately run services charge fees based on what users can afford to pay. Some services are run by volunteers. If the adult cannot afford to pay, the province will.

Does a senior have to agree to an assessment by Adult Protection Services?

If the senior refuses the assessment, or if their caregiver refuses, Adult Protection Services may ask for a court order authorizing entry into the senior’s home. If the judge orders an assessment, Adult Protection Services will be able to go into the place where the senior lives so that it can do the assessment. The Adult Protection worker may ask a doctor to assess the senior’s level of capacity.

Who decides whether a senior needs protection?

If the adult protection worker believes that a senior is in immediate danger, they can take the senior into care until a hearing can take place. Before making an order that an adult needs protection, a judge must be satisfied that:

• the senior is a victim of abuse or neglect in the place where they live
• the senior is refusing services from Adult Protection Services either because they do not have the mental capacity to decide or because they are afraid of harm from the abuser if they accept the services.

After hearing the evidence, if a judge finds that the senior needs protection, they will make a protective intervention order. The judge must be satisfied that someone is a threat to the senior in need of protection and that something more is needed to keep the senior safe from an abuser.

What is a protective intervention order?

A protective intervention order can order someone who may be a threat to a senior to:

• leave the place where the senior lives (unless that person owns or rents the place)
• have no contact or only some contact with the senior
• pay money to help support the senior

Protective intervention orders may not be changed until at least three months have passed. If a senior who needs protection does not have a representative decision-maker or if the representative is not protecting the senior’s well-being and financial interests in decisions they make on the adult’s behalf, the judge may notify the Public Trustee. The person we now call a representative used to be called a guardian in Nova Scotia.

Can a senior be removed from their home?

Yes. Adult Protection Services may remove a senior from their home right away if they believe that:

• the senior’s life is in danger
• the senior needs protection
• the senior cannot decide whether to accept services
• the senior is being pressured not to accept services

Within five days of removing a senior from their home, the Minister of Health and Wellness must either return the senior to their home or apply to the court for an order saying that the senior needs protection.

If a judge finds that the senior needs protection, the Department of Health and Wellness can place the senior in a home for special care, to ensure the senior is safe from abuse and is not being neglected. The Public Trustee may be asked to manage the senior’s property if there is a danger that the property will be lost, wasted, or damaged while the senior is in care. (For more information, see the section Public Trustee.)

An order saying that an adult needs protection or a protective intervention order lasts for six months. The order will end at that time unless a further application is heard by the court. An application can be made to the court to renew, change, or end the order before the six months are up. Those who may apply are the Minister of Health, the senior, someone acting on the senior’s behalf, or the person against whom an order is made. Any renewal of the order will end after six months.

Is the judge's decision final?

No. A person could appeal judge’s decision to the Nova Scotia Supreme Court or to the Nova Scotia Court of Appeal. If you are thinking about appealing, you should talk with a lawyer before deciding what to do.

What happens to the abuser?

The main purpose of the Adult Protection Act is to protect adults who need protection from abuse or neglect, not to punish people who abuse them. Investigation by Adult Protection Services may be enough to stop any more abuse. People in abusive situations may be able to get counselling either as a victim or an abuser. A victim and an abuser would not usually get counselling together.

A protective intervention order can take an abuser out of the senior’s home. A person who breaks a protective intervention order can be fined up to $1,000 or sent to jail for up to one year or both.

The senior may also be able to get a peace bond to stop an abuser from contacting them. The senior can call the police if an abuser breaks the peace bond. For more information on peace bonds, go to the end of this section. The police might charge the abuser with a crime, as some types of abuse are a crime.

Is there a register of abusers?

No. The Department of Health and Wellness, Adult Protection Services, keeps files on reports of abuse in private homes and institutions. The files are not generally available to the public. Family members can apply for information in these files under Nova Scotia’s Freedom of Information and Protection of Privacy Act. You can get more information at the Nova Scotia government website by searching for access to information forms. The website is at novascotia.ca.

Criminal charges may be laid against the abuser in some situations. Abusers who are convicted of a criminal offence, such as assault, will have a criminal record.

Workers who abuse adults in an institution may become known to staff at other institutions and will have trouble getting a job in other institutions.

What can I do if I suspect an older adult is being abused by a representative?

What is the Domestic Violence Intervention Act?

• the victim has custody of a child
• the victim can stay in, or return to, the home and the other partner is not allowed on the property for a period of time
• the victim has possession of property (such as a car, bank card, identification documents, health cards, and personal effects)
• the police can take the abuser’s weapons
• the abuser cannot contact the victim.

What if an older adult faces abuse online or on social media?

• creating a website, blog, or profile that takes your identity
• sharing sensitive personal information online or breaking your confidence
• threatening, intimidating, harassing, or scaring you online
• making false statements about you
• communications that are grossly offensive, indecent, or obscene
• encouraging you to commit suicide.

Cyberbullying can also include encouraging or forcing someone else to do these things.

Where can I get more information on abuse of older adults?

Important terms

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

Cohabitation agreement – A contract between common law spouses which sets out the details of property ownership, how property will be divided upon separation, and any support obligation between the spouses.

Common law relationship - A common law relationship occurs when two people live together in a 'marriage-like' relationship. This means that 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.

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

Joint tenancy – Joint tenancy means that two or more people own property together, 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.

Marriage contract – A contract between legally married spouses which sets out the details of property ownership, how property will be divided upon separation, and any support obligation between the spouses.

Registered domestic partnership – Any two people who are living in a common law relationship can register their relationship with the province as a registered domestic partnership. This gives common law partners many, but not all, of the same rights as married spouses.

You can find more information on registered domestic partners at https://novascotia.ca/sns/access/vitalstats/domestic-partnership.asp.

Tenancy in common – A tenancy in common means that 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.

What safety steps should I take if I’m meeting someone for the first time?

While dating and meeting new people is fun, there are fraudsters who try to take advantage of these situations. Until you get to know your new friend better, here are some things you can do to protect yourself:

• Consider going out with a group of friends.
• Arrange to meet in a public place such as a café.
• Do not offer to pick the person up in your car, and do not arrange to have them pick you up at your home.
• Tell someone where you are going and arrange to call that person when you get home.
• Do not tell your new friend about your finances.
• Do not reveal too much personal information until you get to know the person better.
• Do not agree to lend money.
• Be wary if the person tries to talk you into investing in a scheme.

What should I know about safety and meeting someone online?

There are thousands of internet chat rooms and dating sites. You can also download dating apps on a tablet or smartphone. Many people meet romantic partners online, but you should be aware of the possibility that someone you meet online may not be who they say they are. A fraudster may create a fake online identity to trick someone into providing personal information. This is called “catfishing”.

Here are some things you can do to protect yourself:

• Find out if the website or app has a privacy policy.
• Do not give out your address, workplace, phone number, or other private information.
• Consider using a seniors-only dating site.
• Ask someone you trust to review your profile and make sure it does not reveal private information.

Many public libraries and community centres in Nova Scotia offer free computer courses which can help you learn more about using technology and the internet. Visit getcybersafe.gc.ca under 'Seniors Online' for more information.

What do I need to know before entering into an intimate relationship?

When starting a new relationship, it is important to make sure both people are open and honest about what they are looking for in a partner. Some people may be interested in starting an intimate relationship, while others may be looking for companionship and nothing more.

Words or actions can show that a person does not consent to sexual activity. Actions like struggling or trying to leave show that a person does not consent. Anyone is entitled to say no to any activity at any time. Agreeing to sexual activity on one occasion does not mean that a person has agreed to engage in that activity again in the future. Someone who is intoxicated may not be able to consent.

If you are thinking about engaging in sexual activity with a new partner, you may wish to discuss safe sex with your partner, your doctor, or another person you trust, or do some research online. Rates of sexually transmitted infections (STIs) among seniors in Canada have risen in recent years, but you can take steps to protect yourself.

If I have been dating someone new, do they have a right to my property or money?

No. Dating someone does not give them any rights to your assets. You do not have to support each other financially.

How will my rights change if we decide to live together?

Being in a common law relationship is not the same as being legally married. For instance, you will not have an automatic right to half of one another’s property if you separate or if one of you passes away.

The length of time required to establish a common law relationship varies. For example, the Canada Pension Plan says that to be a ‘common law partner’ you must live with your partner for at least one year. Some other laws, like Nova Scotia's Parenting and Support Act, do not consider you to be in a common law relationship until you have lived with your partner for two years.

If you live with a partner and depend on them for financial support, they may have a legal duty to support you if the relationship ends.  But there is no guarantee that this will be the case. Generally, when a common law relationship ends, each partner is entitled to keep what they brought into the partnership. Assets that have been purchased together should be split equally. However, in real life, it is not always easy to sort out who paid for what.

If you and your former partner cannot agree on how to split up your property when you separate, you may apply to the court for a court order to divide the property. In every case, former common law partners should have legal advice involving common law property division and for support claims.

If you die without leaving a will, your common law spouse may not receive any of your property. Your property is distributed to the people considered to be your nearest blood relatives as set out in the Intestate Succession Act. Your common law spouse would have to apply to the courts for financial support. For more information on wills, see the section Wills. Common law spouses are not included on the Intestate Succession Act distribution list unless they have a registered domestic partnership.

If you plan to move in with your partner, you should talk to a lawyer about how this might change your situation.

If my partner moves in, who owns the things we buy together?

You both do. If you and your partner buy something together, such as furniture or a car, you both own it. If you bought something on your own, it remains your property. Make sure you keep proof of payments (such as receipts) and indicate who paid for the item. You may want to include them in a cohabitation agreement.

How can I protect my property after we move in together or get married?

The best way to protect your property if you move in together is to ask your lawyer about a cohabitation agreement. This is a written agreement between you and your partner that sets out your rights and responsibilities to each other. This can include who owns the property, how property will be divided if you separate, and your support obligations.

If you decide to get married, you could have a marriage contract. This is an agreement between two married people that sets out who owns what property. This type of contract is often called a pre-nuptial agreement, or “pre-nup” for short.

You need a lawyer to write your cohabitation agreement or marriage contract. Your lawyer will explain how your agreement or contract will affect your rights and responsibilities. You should each talk to a different lawyer.

How should I protect myself if my partner and I have a joint bank account?

Many couples keep some of their money separate by having their own personal accounts as well as a joint account. They use the joint account to pay household bills and joint purchases.

There are two types of joint accounts. A joint account with tenancy in common is an arrangement where each person on the account has a share of the money in the account. The shares do not have to be equal. When you separate or divorce, your share is protected and is yours to take with you. If you die, your share is left to your beneficiaries. This type of joint account is subject to probate tax when an account holder dies.

The other type of joint account is a joint tenancy. This means the account holders each have an equal right to use and control the money in the account. When you separate or divorce, the money must be divided equally, even if one person contributed more or less than the other. When one of the owners dies, the remaining owner automatically owns the deceased person’s portion of the assets. This is called right of survivorship.

Joint tenancy is the most common type of joint account for most couples. Unless you instruct your bank otherwise, it will assume that a jointly held account is a joint tenancy. This can lead to problems when a relationship breaks up if one of the account holders takes all of the money out of the account.

Account holders do not have to be related, but often they are spouses or partners, or a parent and child.

The Financial Consumer Agency of Canada has more information information about Joint Accounts, including a publication called "What every older Canadian should know about: Power of attorney (for financial matters and property) and joint bank accounts"

Is my partner entitled to share my pension?

Pension benefits may be regulated provincially or federally. Your pension plan will be governed by federal laws if you work or worked in a federally regulated industry such as banks, interprovincial communications, and interprovincial transportation. Employees of the provincial government, teachers, and federal public-sector employees are covered by separate acts relevant to their pension plans.

When you die, any benefits payable from a pension plan, locked-in retirement account, or life income fund will be automatically payable to your spouse or common-law partner. If your marriage or common law relationship ends, your pension funds may be divided with your partner. This applies if your marriage or common-law relationship ends while you

• are a member of a pension plan 
• have a locked-in retirement account or life income fund or 
• are receiving a pension from a pension plan

The Nova Scotia Pension Benefits Act defines spouses as:

• Legally married people
• Individuals who have cohabited for one year so long as both are not married to someone else, or three years if either of them is married to someone else
• Registered domestic partners

You can read more about pension benefits at https://www.novascotia.ca/finance/en/home/pensions/default.aspx.

Is my partner entitled to my pension when I die?

Your partner is entitled to your pension death benefit if they qualify as a spouse under the provincial or federal law that regulates your pension. If you do not have a spouse when you die, the death benefit will be paid to the person listed with your pension regulator as your beneficiary.

Will I be responsible for my partner's debts?

Whether you are married or in a common law relationship, you are only responsible for another person’s debts if:

• Your name is on a contract, like car or apartment leases
• You co-signed a loan for your partner
• You signed a contract agreeing to pay the loan if they could not.

However, if your spouse applies to the court for a division of debts after you separate, the court may order you to contribute if you can.

When a person dies, their debts must be paid from any assets they owned at the time of death. This can include that person’s share of a jointly owned asset. If they did not own enough property to pay off the debt, it must be written off by the lender.

Will I need to change my will if I get divorced or married?

You should look at your will regularly to make sure it is still what you want and that it still applies to your situation.

If you get divorced, your will as a whole is still valid, although any gifts to your ex-spouse will not be valid. In this instance, the gift will pass to any alternate beneficiary you have named. You may wish to update your will to reflect this change. You may also wish to make different arrangements for your beneficiaries if some of the property you intended to leave them has been divided with your ex-spouse.

If you get married, any will made before marriage will be invalid and you will need to make a new will.

You should not try to change your will by marking in or crossing out words. This may cause significant problems. It is much safer to make a new will. For more information, see the section on Wills.

What is probate?

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.

What do the terms testator, intestate, executor, administrator, and personal representative mean?

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.

What is an estate?

Generally, an estate is everything a person owns when he or she dies.  There are some things that would not be part of an estate.  For example, real estate owned as ‘joint tenants’ with another person, joint bank accounts, and some forms of investments (like RRSPs or RRIFs) or life insurance policies that specifically designate (name) someone as beneficiary. 

An estate may include:
•    real property, like land or a house, that was only in the name of the person who died, or that was owned as ‘tenants in common’ with others; and
•    personal property, such as money, vehicles, jewellery, artwork, clothing, household furnishings, and other personal effects.

If I am named Executor in the will, do I have to accept that responsibility?

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 his or her will.

As an estate’s personal representative, should I hire a lawyer?

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. Click 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.

What duties do I have as an estate’s personal representative?

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 his/her family.  You may be able to take funeral bills to the deceased’s bank and have a cheque drawn on his or her 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;
• Ensure estate debts are paid;
• 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; 
• Ensure 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 new 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.

Can a Personal Representative be removed or step down?

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.

Do I get paid as an estate’s personal representative?

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.

Where do I get the probate forms?

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.

Where can I get more 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
  -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

• A lawyer in private practice who deals with probate, wills & estates
• Legal Information Society of Nova Scotia's Legal Information Line and Lawyer Referral Service at 1 800 665-9779 or 902-455-3135
• Service Canada - What to do when someone dies: http://www.servicecanada.gc.ca/eng/lifeevents/loss.shtml
• Canada Revenue Agency (tax issues) - 'What to do when someone has died' - cra-arc.gc.ca/deceased/
• 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:  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

Should I plan my own funeral?

Most funeral homes offer funeral pre-planning or pre-arranging services. This means you decide on the type of funeral you want, and in most cases, pay for the services when the arrangements are made. If you have a funeral plan, your survivors will know what you wanted, and you spare them the difficulty of making decisions at a stressful and emotional time. You also receive the benefit of a locked-in price. However, this is a very personal decision and there is no “right” answer.

If you have a pre-planned funeral, you should:

• tell your family and the people who would likely organize your funeral about the arrangements you have made
• leave the contract for the funeral where it will be found and read immediately after your death

Some people include burial wishes in their will so there is a formal expression of their wishes. This may be helpful if you give your executor a copy of the will when it is made, but this should not be the only place where you indicate what your wishes are since the will is often not opened until after the funeral.  

It is a good idea to do a separate letter giving your executor and loved ones instructions about your wishes so that they know what you would like and any arrangements you have made.  For example, you can:

• leave instructions about whether you wish to be buried or cremated
• if you want to be cremated you can say if you have specific wishes for your ashes
• list the service or event that you’d like after you die, such as a funeral, wake, memorial service, and/or celebration of life. You can list more than one 
• say if you have specific cultural wishes or practices you would like followed
• say if you do not want any service or event held after you die. 

If you are thinking about pre-paying for your funeral, get at least two quotes. Be sure you know what is included in the basic price and what costs are extra. Consider whether the extras being offered are necessary to your funeral plans and fit your budget. Many of the products and services offered by funeral homes are not required by law.

You can also arrange for a cemetery lot, grave liner, vault, urn, and memorial (including installation). The opening and closing of gravesites can also be pre-arranged. The sale of these cemetery plans is regulated by the Cemetery and Funeral Services Act.

Is a formal reading of my will required at my funeral or at some point after my death?

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

Where do I go to plan my own funeral?

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. You will be given a wallet-sized card which indicates that you have registered your wishes at that funeral home. You can also buy a funeral plan from a funeral planning company.

What is the law on burial of human remains in Nova Scotia?

There are two methods of burial. One is an in-ground burial where the body is placed in a casket and lowered into the ground. Some cemeteries require a liner of wood or concrete. This structure keeps the ground even and solid to allow for proper maintenance.

Another, more expensive form of burial is when the casket is permanently placed in a building or mausoleum above or just below the ground. When you buy a plot in a cemetery, you have the right to access it at reasonable times and the right to put a memorial on the plot. The cemetery’s contract with you will set out what types of memorials or monuments are permitted.

What is the law relating to cremation of human remains in Nova Scotia?

When someone is cremated, both the body and the cremation container are burned completely. There is no law saying that a coffin must be used in cremation. However, funeral chapels and crematoria do request that the body be in a container which will burn, has a hard top, sides and bottom, and has handles.

After cremation, usually a small amount of ash is left. The crematorium may dispose of it or the ashes may be shipped to the next of kin in a cardboard container. If the ashes are to be kept or buried by the family, an urn can be made or purchased. You may provide your own urn if you prefer.

There are no legal restrictions on scattering ashes in a body of water or in the wild. However, scattering of ashes on land is subject to laws regarding property. For example, you may not trespass on anyone’s property. You should also avoid scattering ashes near watercourses that are used for drinking water.

Is embalming required in Nova Scotia?

Embalming preserves a body for a short time, to improve the body's appearance for viewing. In Nova Scotia, embalming is not required if the body is to be buried or cremated within 72 hours after death. Embalming is not done when a person dies of certain communicable diseases (diseases which may transmitted to others).

Funeral homes will often embalm human remains unless you ask them not to, so you should be clear if you do not want this expense to be included in your funeral plans.

What are a funeral home's legal obligations?

In Nova Scotia, any funeral home, crematorium, or company providing funeral merchandise or services to the public must have a funeral home licence. This licence is issued by Service Nova Scotia.

Funeral homes in Nova Scotia are regulated by the Embalmers and Funeral Directors Regulations. They regulate how a funeral home, funeral director, embalmer, and apprentice embalmer can advertise. For example, funeral goods and services cannot be sold over the phone or through door-to-door sales, 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. The money you provide for your pre-planned arrangements must be held in a trust account and cannot be used by the funeral home for any other purpose. The lowest priced merchandise available must be included in any display of funeral merchandise.

When you cancel pre-planned funeral arrangements, the seller may charge an administration fee and may keep the interest plus up to 10 % of the money you have paid. If the funeral home goes bankrupt, the money kept in trust will be distributed by the courts to everyone whose money was in the trust.

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 at the time of your death.

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.

Is there any financial help to pay for funerals?

The Canada Pension Plan (CPP) provides a one-time death benefit to the executor or next-of-kin of a deceased CPP contributor. The maximum benefit amount is $2,500. Payment from Service Canada takes approximately 6-12 weeks after a benefit application is filed. 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 Community Services (DCS) may provide financial assistance to 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 applied against the cost of funeral costs. For more information, contact your local DCS office or visit https://www.novascotia.ca/coms/.

The Veterans Affairs Canada Funeral and Burial Program ensures 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 http://www.lastpostfund.ca.

Can I cancel my pre-paid funeral plans?

Yes, you can cancel a pre-arranged funeral plan or cemetery plan at any time. However, a seller may keep any interest that was earned on your money. If any cemetery or funeral goods were purchased at your direction of the consumer, those items must be delivered to you.

Can I donate my body for scientific research?

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 was established to help professional students learn about human anatomy and biology. Your next-of-kin must consent to the donation. If your remains are accepted, the Program 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 1-3 years before this happens. For more information, call 902-494-6850 or visit https://medicine.dal.ca/departments/department-sites/medical-neuroscience/about/donation-program.html.

The Maritime Brain Tissue Bank was established to collect brain tissues and to make them available for researchers who are trying to better understand the 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 deceased must consent. For more information about this program, call (902) 494-4130 or visit http://braintissuebank.dal.ca.

If you wish to be an organ and/or tissue donor, visit Nova Scotia Organ and Tissue Donation Program.

It is possible to make donations to both the Human Body Donation Program and the Maritime Brain Tissue Bank. However, you should have a back-up plan in case either program is unable to accept your remains.

Are there any eco-friendly or green burial options available in Nova Scotia?

Eco-friendly or “green” burial refers to burial practices that attempt to minimize the environmental impact of disposing of human remains. There are a number of non-profits in Canada which provide information about eco-friendly burial options. These options include avoiding embalming and cremation to allow remains to decompose naturally, and eliminating the use of varnish, glue, laminate, or metal when building coffins or caskets.

The law does not regulate which services or practices may be labelled as green or eco-friendly, so you should research funeral homes or cemeteries making these claims to be sure that their practices align with your wishes. In Nova Scotia, there are no completely green cemeteries, although some cemeteries have green sections.

Where can I get more information on planning my own funeral?

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

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

The municipality where you want to be buried will have a bylaw on cemeteries. For example, the Halifax Region's bylaw C-700 can be read online at: www.halifax.ca/legislation/bylaws/hrm/documents/By-LawC-700.pdf

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. 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 are located in band offices of CMM’s member bands or 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 pre-planning a funeral. One recommended resource which includes checklists for funeral pre-planning is:

Big Death: Funeral Planning in the Age of Corporate Deathcare
Author: Doug Smith
Publisher: Fernwood Publishing (2007) ISBN-10: 1552662403

Another resource which examines North American attitudes about death and provides information about how the funeral industry works is:
Smoke Gets in Your Eyes: And Other Lessons from the Crematory
Author: Caitlin Doughty
Publisher: W.W. Norton & Company (2015) ISBN-10: 0393351904

Complaints or concerns about funeral pre-planning?

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.

Do I have a right to see my grandchild?

Most of the time, grandparents have a good relationship with their family and can spend time with their grandchildren through one or both parents. But the law does not say parents must allow their child to spend time with their grandparents.

What are the terms used to describe parenting and spending time with a child?

Decision-making responsibility (in the Divorce Act)
Decision-making responsibility is 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 extra-curricular activities. This has traditionally been called ‘custody’. The Divorce Act no longer uses the word custody.

Custody (in the Parenting and Support Act)
Custody means 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. Usually the child lives with the person who makes the major decisions about their care and upbringing.  This term is only used in the Parenting and Support Act (NS). In the Divorce Act custody has been replaced with the term 'decision making responsibility' and 'parenting time'.

Parenting time
Time a child spends with a parent or guardian because of a court order or agreement. It is a term used in both the Parenting and Support Act (NS) and the Divorce Act (federal).  The term 'access' is no longer used. 

Contact
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. It is a term used in both the Parenting and Support Act (NS) and Divorce Act (federal). Contact may sometimes also be called access although the term 'access'  is no longer used in the legislation.

Interaction (in the Parenting and Support Act)
Communicating with a child outside of parenting time or contact. It 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 with the child.

An agreement or court order that uses the terms ‘custody’ or ‘access’  continues until it is changed (‘varied’) with a new agreement or court order. You do not need a new agreement or court order just because the language used in the law has changed.

Do I have custody of my grandchild if my teenage child becomes a parent?

No.  Any woman who gives birth is the parent of the child, regardless of her age.

If your child in under the age of 19 and still lives at home, you have a duty to support your child.

If your child is struggling to parent as a young person and wishes to give you authority over their child then you can raise your grandchild without any formal agreement or court orders in place.

If you want to have a formal agreement or court order in place to confirm your decision making authority (custody) regarding your grandchild, you may apply to court. To make an application to court you first need to ask for the court's permission to go ahead with your application.  This is called asking for the court's ‘leave’. You would have to provide a reason(s) why it is in the best interests of your grandchild to proceed. You would also have to provide notice of your court application to the child’s other parent. That person would be able to request decision-making authority (custody) of your grandchild and would be considered first in line to raise the child, unless there are reasons why that would not be in the child’s best interests.

Can I apply to court for custody of my grandchild or to spend time with them?

If you wish to apply to have the decision making authority (custody) of your grandchild, or parenting time, you must ask for the court’s leave under the Parenting and Support Act or the Divorce Act.

Leave is permission from the court to make an application. When you ask for leave, you must explain to the court why you are asking to have decision making responsibility (custody) of your grandchild, and what role you play or have played in your grandchild’s life.

Grandparents applying for contact or interaction under the Parenting and Support Act do not need to ask for leave.

Grandparents applying for contact (time with a grandchild) under the Divorce Act must ask for leave.

It is also important to look at other options first to resolve the dispute, such as mediation or negotiation or family counselling.

It is a good idea to talk to a lawyer if you are considering going to court.

How does the court decide what is in the child's best interests?

To decide what is in the child’s best interests, a judge will think about:

• the child’s needs
• the parents’ or guardians’ ability to care for the child
• how the parents or guardians care for the child
• the plan proposed for care of the child
• the child’s cultural, linguistic, religious, and spiritual heritage
• what the child wants, if appropriate
• the relationship between the child and their parents or guardian
• the relationship between the child and their grandparent(s)
• how well the adults in the child’s life talk with each other
• whether there is family violence and its effects on the child.

In cases about contact or interaction with grandparents, a judge will also think about:

• whether the child’s parents or guardians are willing to support contact
• whether an order for contact is needed to allow the child to see their grandparent(s)
• if there is family violence and its effects on the child.

What are some ways to reach an agreement without court?

Negotiation. A less formal process of discussing the issues the child’s parents and grandparents do not agree on to try to reach an agreement. You can try to negotiate with your grandchild’s parents on your own or with someone else’s help, such as a lawyer.

Mediation. An alternative or assisted dispute resolution (ADR) process where a mediator helps parties reach an agreement. A mediator is a neutral, independent, and objective third party who is trained in ADR.

If the child’s parents and grandparents cannot reach an agreement on custody, decision-making responsibility, contact, or interactions, mediation is an option. A mediator will meet with the people involved, discuss the issues, and help them come to an agreement. Mediation is voluntary, and everyone must feel comfortable with the process.

Private mediation services are listed online or in the telephone book. You can also find a mediator through Family Mediation Canada (fmc.ca), or through the Legal Information Society of Nova Scotia’s Mediator Referral Service. You might be referred to a mediator through the family court process.

Collaborative law. A process where lawyers trained in collaborative law help participants work together to reach an agreement. Everyone must agree at the beginning to work together without going to court. You can find a trained collaborative family lawyer and get more information about collaborative family law online at collaborativefamilylawyers.ca.

Joint family counselling. May be an alternative to a court or negotiated settlement. This would give both sides an opportunity to air out their differences and to help each other understand why a relationship between a grandparent and a child is being blocked.

No matter what approach you take, it is always a good idea to get legal advice if you are trying to reach an agreement. If you reach an agreement, it is important to get independent legal advice from your own lawyer before you sign the agreement.

How do I apply for custody, contact, or interaction?

You can start an application for decision-making responsibility (custody), contact, or interaction with a lawyer’s help, or on your own. If you cannot afford a lawyer, you can apply to Nova Scotia Legal Aid at their website, nslegalaid.ca, or call your nearest Legal Aid office. It is listed under Legal Aid in the telephone book.

Or, you can hire a lawyer in private practice who does family law.

If you do not have a lawyer, you can ask court staff for information about the documents you must file, or go online to nsfamilylaw.ca/custody-access/information-grandparents for information about where to start. You can find an online guide to making a court application at nsfamilylaw.ca/guide-making-application-court. You can also make an appointment to see the Summary Advice Lawyer. The Summary Advice Lawyer provides free, brief legal advice to anyone who has a family law issue but does not have a lawyer. There are no income criteria. Call the family court for contact information, or go to nsfamilylaw.ca

Intake is a session at family law courts you must go to. You will get information about starting a court application or settling a family law matter outside of court. Intake can happen at the court or online.You must do an intake session before court staff will look at your application.

Once you have given the court your application and you have gone to an intake session, you may attend conciliation. This is a form of dispute resolution. A court officer will help decide what issues you need to sort out. They will make sure everyone gives the court the needed documents. And they will help negotiate a settlement if they can. The conciliator may speak with both sides together or separately.

If you cannot settle your matter, you can ask the court for a formal hearing.

Where do I apply to court?

Generally you must apply to the family law court closest to where the child lives.

Is financial support available for grandparents with custody or care of a child?

Anyone, including a grandparent, who has decision-making responsibility (custody) of a child can apply to court for child support.

Grandparents who care for their grandchildren may also qualify for government tax benefits, like the Canada Child Benefit. You can get information about the Canada Child Benefit from the Canada Revenue Agency, at canada.ca/en/revenue-agency.html or by calling 1-800-387-1193.

What if the person with care of my grandchild will not follow a court order for contact time?

If the person with care of your grandchild prevents your court ordered contact or interaction, you should first try to work out an arrangement with them. You should avoid involving police or the court if possible. If this is not possible, you can apply to court to take steps to enforce the order. It is best to speak with a lawyer before you do that. You can ask a lawyer about section 41 of Nova Scotia’s Parenting and Support Act, which is a part of that law that may help with enforcement.  You may also wish to try family counselling to find out why the parent is preventing your contact with the child.

Can I apply to change a court order?

You can apply to vary, or change, a court order if there has been an important change in circumstances since the court order was made.

This could include:

• a change in parenting arrangements
• an address change affecting your ability to visit your grandchild
• a change in your grandchild’s schedule that affects contact or interactions.

What should I do if I suspect a child is being neglected or abused?

If you believe that any child is being neglected or abused, you have a legal duty to report it to the Department of Community Services.

Contact the department by getting in touch with the office nearest you, or use these toll-free numbers:

• Weekdays, 8:30 a.m.–4:30 p.m.: 1-877-424-1177
• Weekends or holidays: 1-866-922-2434

If my grandchild is taken into care by child protection, what will happen next?

If a child is abused or neglected, the Department of Community Services will try to keep them in their home and to offer services to the parents and child. However, this is only as long as the child is safe. If a child is in serious risk of harm, the Department may remove a child from the home and take the child into care.

“Taken into care” means the child is removed from the home and is cared for in a foster family’s home or in another place. A “plan of care” is the Nova Scotia government’s term for arrangements that are made about the child. If a child is taken into care, the Department must take the matter to court for a judge to review. This must happen within five days or the child will be returned to their home.

When the Department decides that a child will be placed in care, the Children and Family Services Act says that the child must be placed with a relative if possible. Grandparents are often asked to care for children while their parents work to address parenting concerns. Sometimes this is for a short period of time, other times it may become a permanent situation.

If there are significant concerns then the child protection case may continue for between 18 months and 2 years to allow enough time for parents to address the parenting concerns. If the parents are unable to address the concerns within this timeline then the court must place the child into permanent care, unless there is another plan to consider. Often that plan includes a grandparent permanently caring for a child.

A child who has been placed by court order in the permanent care of the “Minister of Community Services” may be adopted if the court agrees that is in their best interests. Generally the Department of Community Services would have to approve your proposal to adopt your grandchild. Once a child is adopted, the Department of Community Services is no longer involved, and the parents who adopt the child will make decisions about contact with the child’s birth family.

Here is more information about child protection.

 

Where can I find more information about grandparents’ rights?

Nova Scotia Legal Aid. Your local Legal Aid office is listed under Legal Aid in the telephone book or you can find them online at nslegalaid.ca.

A lawyer in private practice who does family law. You can go to legalinfo.org, under Lawyers and Legal Help, for ways to find a lawyer.

Family Law Nova Scotia. The website at nsfamilylaw.ca offers information for grandparents.

Legal Information Society of Nova Scotia. Legal information line: 902-455-3135 or 1-800-665-9779 (toll-free); online at legalinfo.org;
The Legal Information Society of Nova Scotia may also be able to refer you to a lawyer or mediator.

NS Child Welfare Services
Online: novascotia.ca/coms/department/contact/ChildWelfareServices.html

You can also find information about grandparents’ rights advocacy and support groups online or by contacting NS 211.

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. 

What is an estate?

Your estate is what you own when you die. It typically includes:

• property (land, house, condo)
• money (cash, bank accounts, investments)
• personal belongings (household goods, vehicles, valuables like jewellery or artwork).

If you owe debts when you die, like unpaid credit card bills and income tax, your executor must first pay your debts out of what is in your estate. Only what is left after all debts are paid may then be given out based on what you say in your 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 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.

Assets that are not part of your estate

Your estate typically excludes:

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

When you die, 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 beneficiary you named.  This payment does not take into account tax consequences, which must be paid out of the assets that pass through your will. The same is true if you have life insurance that names a beneficiary, although typically there are no tax consequences for life insurance proceeds.  If you name your estate as beneficiary instead of a person or charity, the money goes to your estate and will be distributed as you direct in your will. 

Assets you share with a spouse or minor children go to the surviving owners when you die. Shared assets with anyone else, including adult children, are not automatically assumed to go the survivor owner, so you should clearly set out in writing what you want to happen with those assets on your death and who should benefit from them.  For jointly owned accounts, on your death the account may legally pass to the joint owner according to the financial institution paperwork, but be aware that the joint owner may then have a legal responsibility to share that account with other beneficiaries of your estate.  If you want to leave assets to family members other than your spouse or minor children by joint ownership, see a lawyer.

You should check to make sure you know how assets with a named beneficiary and shared assets are set up, and who will benefit when you die:

• Check with your bank to see how your accounts are set up if jointly owned.
• Look at the deed to any property you have (house, land, condo) to see if you own the property with another person (called 'joint tenancy with right of survivorship', which is different from tenancy-in-common).
• Check with your bank or trust company to see who benefits from your RRSPs, RRIFs, and TFSAs, other investments, or life insurance when you die.

Also ask if you can name a back-up beneficiary (also called an “alternate beneficiary”) for those assets that permit it. If you don’t do this and the beneficiary you named dies before you or at the same time as you, these assets go into your estate and are given out based on what you say in your will, or based on the law that applies if you die without a will (Intestate Succession Act).

If you are not sure about who will benefit from these assets when you die, see a lawyer. 

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.
• The government would inherit if you have no surviving relatives.

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 www.canada.ca/en/indigenousservices-canada.html, under ‘Indian Status’, then ‘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, such as 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 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.

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. An executor is the person who is responsible for carrying out the instructions in the 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) 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. 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 who gets the property that remains after all specific gifts have been paid out or given to your beneficiaries.

If your will does not contain 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. Intestate means a person who dies without a will.

Other Clauses
A will may contain other clauses to suit your needs. For example, you may want to recommend a guardian for your children, 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. It means you:

• know that you are making a will and understand what a will is,
• know what property you own, and
• are aware of the people (like your spouse and children) that you would normally feel you should provide for. 

If you become mentally incompetent after you have made your will, the will is still valid.

Mental competence to make a will can be an issue if a person’s ability to think clearly is affected by illness, drugs, or pain. You should make your will while you are in good health so that no one questions your mental competence.

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 witnesses who must be present 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 people who benefit from the will (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 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, in Nova Scotia, two laws place some limits on how you may distribute your property in your will. Those laws are the Testators’ Family Maintenance Actand the Matrimonial Property Act. A testator is a person who makes a will. 

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, including adopted children, and surviving married spouse or registered domestic partner.

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

If you do not provide for a dependent in your will, they can go to court and ask a judge to order support. 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, the testator, 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.

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 a 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?

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.
• Consider 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, and often is, 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.

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. Think about whether your executors will work well together, and whether they will both be in the same geographic area when they have to deal with your estate.

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.

Where should I keep my will?

You should keep your will in a safe place. You might not need it for many years, and you will have to keep track of where it is. It must be somewhere that your executor can find it easily, and you should tell your executor where they can find it. 

The safest place to keep your will is a safe deposit box that is in your name only or that is held jointly with someone else. If you do not have a safe deposit box, keep your will in a fireproof place that is private, so that others cannot read the will before you die.

You could give your will to someone you trust. However, the person storing your will may move away or die. 

If you hired a lawyer to write your will, you can ask them to keep a copy as well.

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.

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?

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.

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.

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. The first words of a codicil name the will being changed. It must say which clauses of the will are removed or changed and give the new instructions. 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. A codicil is generally used only to make minor changes to a will.  It is wise to make a new will if you wish to make major changes to your will or if you already have several codicils. Codicils are often lost and often written improperly.

Do not change your will by marking or crossing out words in the 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 your 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 call the Legal Information Society of Nova Scotia’s Legal Information Line, 902.455.3135 or, toll-free, 1.800.665.9779. You can also email your legal information questions.

The Legal Information Society of Nova Scotia can also refer you to a lawyer who does wills. More information is at www.legalinfo.org/how-lisns-can-help/i-need-a-lawyer.

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 can refer you to a lawyer who does wills. More information is at www.legalinfo.org/how-lisns-can-help/i-need-a-lawyer. Or, 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 another person authority to act in financial and property matters on your behalf. If you let someone act on your behalf, you might hear someone call you the donor or grantor. The person receiving the authority is called the attorney (even if they aren’t a lawyer). Giving someone a power of attorney does not limit you from acting on your own behalf. You still have control of your financial affairs and are free to deal with your property, money, and investments. 

See Being an Attorney: Legal Responsibilities for information about an attorney's role and legal duties under an enduring power of attorney document.

To give someone else authority to make personal or health care decisions for you, you need a personal directive. See the section on Health Care Treatment and Consent or go to the Nova Scotia Department of Justice’s website on personal directives.

You don’t have to give someone else power of attorney. But it is a way for you to choose who will act for you if you can’t act for yourself.

Why would I need a power of attorney?

Here are some reasons to write a power of attorney:

• You are too sick to deal with your financial affairs and you need someone to take over control for you until you get better.
• You can’t get around very well and you want to let someone deposit and withdraw money from your bank account.
• You are travelling or working away from home and you want to allow someone to deal with your financial affairs while you are away.
• You have an illness that will lessen your ability to make decisions or to move around in the future, and you want to plan for that.
• You want to make arrangements now while you are well and competent to prepare for the unexpected. Competent means able to make important decisions for yourself. If something like an accident should limit your ability to deal with your affairs or to get around, you will be ready.

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 status Indians who ordinarily live on reserve.   The Indian Act does not apply if you are status Indian living off-reserve or a non-status Indian living 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 powers of attorney from:

• Indigenous Services Canada online at https://www.canada.ca/en/indigenous-services-canada.html, under 'Indian Status', 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 does 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.

If I give someone my power of attorney, can I still act on my own behalf?

Yes. If you give someone your power of attorney, you can still make your own decisions until you become unable to do so.

How much authority can I give in a power of attorney?

You choose what powers to give your attorney. There are two levels of responsibility:

• A general power of attorney gives your full authority to your attorney. There are few limits on what they can do on your behalf.
• A specific power of attorney says exactly what authority you allow your attorneyto do on your behalf. It limits what your attorney can do.

A specific power of attorney is most often used when you need someone to sell a piece of land for you or to deal with a bank account for you. 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 period of weeks or months.

What duties does my attorney have?

Your attorney has a duty to take good care as they carry out what you have allowed them to do. This includes the duty to:

• stay within the authority you have given,
• use reasonable care and skill,
• act in your best interests,
• not profit personally from what is done for you (although you can specify how the attorney is compensated for assisting you).

See Being an Attorney: Legal Responsibilities for more information about an attorney's legal duties.

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

No. 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. If you don’t have a lawyer, here are some ways to find one, or call our Lawyer Referral Service, at 1-800-665-9779 (toll free) or 902-455-3135 in the Halifax area.

You can write your power of attorney yourself. You can fill in a blank form; you can buy one from a store or download one from the internet. There are also books and kits available for powers of attorney.

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, insurance can 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,
• tell you about standard clauses to provide for unexpected events,
• tell you about options for wording the power of attorney,
• tell you about things you can do now to make it easier for your attorney to deal with your affairs later,
• answer any questions you might have,
• help you understand better what can happen when you give someone power of attorney,
• give proof that you had legal capacity when you made your power of attorney,
• give proof that you made your power of attorney by your own free choice, and free of undue influence.

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

Very important: Get advice from a lawyer if you want a specific power of attorney. These documents must be written carefully to meet each person’s unique needs, and a lawyer should check them.

What does it cost for a lawyer to do a power of attorney?

Lawyers charge a fee based upon the amount you want them to do. The fee depends on how complex the work is. Lawyers often charge a flat fee for doing a power of attorney. You should discuss fees with the lawyer before you decide to hire them.

Can I buy a power of attorney form?

You may be able to find a form online. Some office supply stores may have forms for general powers of attorney. There are also books that provide examples of forms.

There is no standard form for a specific power of attorney because the wording will depend on what powers you want to give your attorney. You or your lawyer will have to draw up the form to fit your needs. You will usually need a special form from your bank if you want your attorney to access your bank account.

How much will it cost?

A general power of attorney form from an office supply store costs a few dollars. Banks do not charge a separate fee for their power of attorney forms.

The cost for lawyers’ fees will depend on how long it takes to draw up 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.   Here is information about ways to find a lawyer. 

Other costs:

• Your attorney may have small expenses, such as for postage and telephone.
• If your attorney is a lawyer and you ask them to do legal work like buying property or writing a will, they may charge for doing these tasks.
• The Public Trustee and trust companies charge fees for acting as your attorney. Fees are based on the value of your estate and your income.

A friend or relative is not entitled to a fee unless there is an agreement between the two of you for payment. In that case, you should include the terms of payment in the power of attorney document. Often a family member or a friend acts as an attorney without payment.

What are the general legal requirements for a power of attorney?

The legal requirements are:

Adult: In Nova Scotia, you must be aged 19 or older to:

• give a power of attorney, or
• act as attorney under a power of attorney.

Capacity:  You must be mentally competent to give someone power of attorney. This is also called having legal capacity. It means you:

• know that you are making a power of attorney and 
• understand what it means to give a power of attorney.

If you become mentally incompetent after you have made your power of attorney, the power of attorney is no longer valid unless it is an enduring power of attorney. Mentally incompetent means you can no longer make your own decisions.

Capacity to make a power of attorney can be an issue if a person’s ability to think clearly is affected by illness, drugs, or pain. You should make your power of attorney or enduring power of attorney while you are in good health so that no one questions your mental competence.

The person who is named as an attorney under a power of attorney must understand what it is to receive a power of attorney.

Written:  Your power of attorney must be in writing.

Signed:  You, the donor, must sign your power of attorney. It is wise to put it under “seal.” Sealing means that someone has attached a red seal to the document opposite the donor’s signature. You can buy seals at an office supply store. If you want your attorney to buy or sell property for you, the power of attorney must have a seal on it. 

Often, another person witnesses the donor’s signature. This is not required for an ordinary power of attorney but people often do it.

An enduring power of attorney is different: it must be witnessed. The witness must be at least 19 years old and cannot be the attorney or the attorney’s spouse.

If you cannot sign your name, you can place your mark on the power of attorney. A mark is a cross or other symbol used in place of a signature. A witness should sign a statement saying that you made the mark. This statement is called an affidavit of execution. 

If you have a visual impairment, you must ask someone to read the contents of the document to you before you sign it or place your mark. A witness must sign an affidavit that someone read the document to you and that you understood it before you sign it or place your mark on it.

What is an affidavit of execution?

An affidavit of execution is a witness's statement that they saw you sign the power of attorney, that you signed in front of the witness, and that you were of sound mind and of the age of majority (at least 19 years old in Nova Scotia) when you signed it. The witness signs the affidavit of execution.

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. 

People often do an affidavit of execution for a power of attorney, even though the law does not generally say you must do one. However, if you want your attorney to buy or sell land for you, the Land Registration Office will require an affidavit of execution.

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

For more information on recording your power of attorney at the Land Registration Office, see these sections:

• Can a power of attorney be used to buy and sell land? 
• Do powers of attorney have to be recorded or registered in Nova Scotia?

Is there anything else I should include in a power of attorney?

The following are not legal requirements, but they are a good idea:

• Put the date on the document.
• Put your initial and page number on each page so pages cannot be replaced or removed.
• Someone who is a competent adult and is not the attorney or the attorney’s spouse should witness your signature. That person should sign their name on the document. The witness does not need to know what is in your power of attorney.
• Arrange for the witness to swear an affidavit of execution. 

Who can be my attorney?

Anyone who is at least 19 years old and who is mentally competent can be your attorney. You should choose someone you trust and who will carry out your wishes.

If you do not wish to give a relative or friend power of attorney, you can appoint a lawyer or trust company. Also, depending on the circumstances, the Nova Scotia Public Trustee might agree to act as your attorney. The Public Trustee is a government office that manages the affairs of some people who cannot do it for themselves. Contact the Nova Scotia Public Trustee for more information.

Does the person receiving the power of attorney have to sign the document?

No. The attorney does not have to sign the power of attorney document. But if they need access to any bank account, they will have to sign documents at each bank, trust company, and credit union where you have an account that the attorney will use, as the financial institution will generally need your attorney's signature for their files. 

Can my attorney use my bank account?

Yes, if you include that authority in your power of attorney document.  Banks, trust companies and credit unions generally have their own power of attorney forms which they will want you or your attorney to sign.  These forms can only be used to deal with that particular financial institution.

Carefully read any form you are given before you sign it.  It may limit an attorney's powers to deal with particular accounts or it may include power to deal with all accounts, investments and safe deposit boxes held by you.  It may affect any existing power of attorney you have.

You can talk with the financial institution's staff about your needs.  If you do not understand all of the terms, you can ask them or ask a lawyer.

Can the person I choose as my attorney decide not to act?

Yes. It is important to discuss your wishes with the person you plan to name as your attorney.  Before you write your power of attorney, ask the person you want as your attorney if they will take on the job. If they refuse, you should appoint someone else. You should also ask someone to act as a back-up attorney.

If you do not name a back-up attorney and your attorney tells you they no longer want to act as your attorney, your power of attorney will automatically be cancelled.

Can my attorney do my taxes?

Yes, but usually only if you include a special clause in your power of attorney that allows them to deal directly with the Canada Revenue Agency on your behalf.

Can a power of attorney be used to buy and sell land?

Yes, if you give your attorney that authority in your 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.

You can find phone numbers for Land Registration Offices in the blue Government pages of the phone book under Land Registration or visit the Access Nova Scotia website for locations. There is a fee to record documents, although fees change from time to time. Contact staff at the Land Registration Office for information on fees for recording documents.

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

What is an enduring power of attorney?

An enduring power of attorney is a special power of attorney document. It clearly says that your attorney’s power to act for you continues even if you can no longer make decisions for yourself. This is called becoming mentally incompetent or losing legal capacity.

An ordinary power of attorney would no longer be valid and could not be used if you became mentally incompetent or could no longer make important decisions. In that case, you might need a representative under the Adult Capacity and Decision-making Act to handle your affairs. 

For more information on adult representation, go to the Nova Scotia Public Trustee’s website. 

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

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

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 someone 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 continue to act if you become mentally incompetent, 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.

What is a contingent power of attorney?

A contingent power of attorney is a special power of attorney document that says what event will make it come into effect. That 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.  It is best to see a lawyer if you want a contingent power of attorney.

What can happen if I do not have an enduring power of attorney?

If you become mentally incompetent and cannot take care of your affairs, a relative or friend may ask a court to appoint a representative to handle your affairs. This might not be the person that you would have chosen.

For more information on adult representation, see the section on Representative Decision-making for Adults or go to the Nova Scotia Public Trustee’s information on Adult Capacity and Decision-making Act.

When is it too late to give a power of attorney?

It is too late to give a power of attorney when you no longer have the capacity to make important decisions for yourself. 

It might still be possible to do a power of attorney if you lack some decision-making ability or have trouble understanding information about power of attorney or the effect your choices may have. However, you should see a lawyer who does estate planning and who has experience working with people who have decision-making or memory problems. The lawyer may need to talk with your doctor.  There may be some decisions that you are still capable of making under the right circumstances, and with the information explained in a way that you are able to understand. 

If you do not have capacity to give power of attorney, another adult such as a family member or friend might apply to court to be named as your representative decision-maker under the Adult Capacity and Decision-making Act.  See the page on Adult Capacity and Decision-making for more information.

Are there special requirements for an enduring power of attorney?

Yes. An enduring power of attorney has the legal requirements of an ordinary power of attorney, plus two more:

• Someone who is competent, at least 19 years old, and who is not the attorney or the attorney’s spouse must witness that you signed it.
• It must say that it will still be in effect if the donor loses capacity to make important property and financial decisions.

These special requirements are set out in the Nova Scotia Powers of Attorney Act.

What happens if I become mentally incompetent?

If you become mentally incompetent, or unable to make important decisions, the power of attorney becomes invalid unless you have an enduring power of attorney. An enduring power of attorney says that you wish the power to continue even if you become mentally incompetent or lose legal capacity to manage your own affairs.

If you do not have an enduring power of attorney and you become mentally incompetent, the court may name a representative under the Adult Capacity and Decision-making Act to handle your affairs.

Can my attorney make personal care decisions for me?

Only if you give them the authority to do so. The Nova Scotia Personal Directives Act lets you choose a person to make personal care decisions (including health care decisions) for you if you can no longer give consent. That person is called your delegate. 

Allowing someone to make personal care decisions for you is usually done in a separate document called a personal directive. 

See the section on Health Care Treatment and Consent for more information about personal directives. You can also learn more about personal directives and see a sample form at novascotia.ca/just/pda/.

If you decide to include personal care decision-making in the power of attorney document , your power of attorney must be in writing, and you and a witness must sign it. The witness cannot be your delegate or your delegate’s spouse. Both you and your delegate must be at least 19 years old and must be mentally competent.

Where should I keep my power of attorney?

You should put your power of attorney document in a safe place. A fire-proof location 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. 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.

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 a 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.

Do not put your power of attorney in a safe deposit box that is in your name only, as your attorney may not be able to get access to it quickly. 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 it is needed.

How does a power of attorney end?

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

Very important: You can end a power of attorney at any time and should do so if your attorney is abusing the power you gave them.

You should always name a back-up attorney in your power of attorney. If your first choice is not able to act for any reason, your back-up attorney takes over authority to act on your behalf and your power of attorney document stays in effect.

If you do not name a back-up attorney, your power of attorney document will have no legal effect after your attorney: 

• dies, 
• becomes incompetent, or
• gives you notice that they no longer want to act for you.

You should give written notice when a power of attorney is cancelled or when an attorney’s authority ends. Any person or business that deals with the attorney will think the power of attorney is valid unless they are told it is not.

Notice by the donor: You can end a power of attorney by telling the attorney in writing. This is called giving notice. The notice must be in writing and dated, and you must sign it.

If you cancel your power of attorney, you should also do the things below:

• Write to all the people and businesses who deal with the attorney. Tell them that the power of attorney has been cancelled. Keep a copy of the letters.
• Ask everyone who has a copy of the 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 if the power of attorney is registered there. Find out what needs to be done to put notice of your cancellation on the record. You do not need to do this if the power of attorney was for a specific time period that has ended or for a task that has been completed. 

Notice by the attorney: Your attorney can give you notice that they no longer want to act as attorney. You should write to the bank and others and tell them that the power has been cancelled. Keep a copy of these letters. Ask your attorney to return the power of attorney document to you.

Mental incompetence: If you cannot make important decisions for yourself, your power of attorney ends automatically unless it is an enduring power of attorney.

If your attorney becomes mentally incompetent and you have not named a back-up attorney, your power of attorney ends automatically. This is the case whether it is an ordinary or an enduring power of attorney.

When the Public Trustee is acting for someone who becomes mentally incompetent, the Public Trustee will continue to act for that person.

Death: When you die, the power of attorney ends. 

If the attorney dies, the power of attorney ends unless you have named a back-up attorney. 

If the Public Trustee is acting for a person who dies without a will naming an executor, they will continue to act until a court appoints someone to administer the estate. For more information, contact the Nova Scotia Public Trustee.

Bankruptcy: If you become bankrupt, your power of attorney ends and a licensed insolvency trustee takes over all your financial affairs. A licensed insolvency trustee is a licensed person who manages the affairs of a bankrupt person.

If your attorney becomes bankrupt, your power of attorney is not automatically cancelled. It is only cancelled if the bankruptcy makes your attorney unfit to carry out their duties.

If your attorney is unfit to carry out their duties, your back-up attorney takes over and acts on your behalf, and your power of attorney document remains in effect.

Time or task: A power of attorney can be for a specific time or task. When the time or task is complete, the power of attorney ends. 

For example, you might give someone specific power of attorney to sell a house. The attorney’s authority under that document would end when the house is sold.

In another example, you might give a general power of attorney while you are away on vacation. The attorney’s authority under that document ends when you return.

If a specific power of attorney allows the attorney to act over time, the power continues until it is cancelled in one of the ways listed above.

A general power of attorney may continue indefinitely or it may be for a specific time. 

Do powers of attorney have to be recorded or 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 recorded or registered at the Land Registration Office where the land is located.

What are the risks of giving someone my power of attorney?

Power of attorney gives someone else power to act for you. Banks and other financial institutions rely on the written power of attorney document. If you give your attorney power to withdraw money from your bank accounts, to deal with your property, or to buy and sell investments on your behalf, the bank will not usually contact you to see if you approve of what the attorney is doing.

Most people who are named in a power of attorney are honest. 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 abuse that power because theybelieve that they know what is best for you, or they want to get money or property for themselves.

What can I do to prevent misuse of a power of attorney?

Here are some things you can to help stop someone from abusing a power of attorney:

• Choose carefully. Choose an attorney you can trust who will respect your wishes.
• Continue to pay attention to your affairs. Ask your attorney questions. Get regular statements and updates. Do not give up all control to that person, although keep in mind that a power of attorney typically takes immediate effect.
• Require your attorney to give you, or someone else if you become incompetent,  regular updates on how they are managing your affairs.
• If you have a lot of savings, property, or investments, think about appointing a lawyer or a trust company to act on your behalf. Look carefully into the costs of this before you make a decision.
• Give a specific rather than a general power of attorney, unless you find that you must give your full authority. For example, if you need your attorney to deal with just one bank account, then give them power to do only that.
• 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.
• If you have investments, arrange for your investment dealer to keep you informed about all dealings. You can also arrange for them to inform a third person if you become incompetent.
• Make a list of your property, jewellery, savings, furnishings, and investments. Keep it up to date. Give a copy to the person named in your power of attorney and to at least one other person you trust.
• Tell your banks, financial institutions, and investment dealers to tell you about any transactions over a set limit.

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 and on your relationship with your attorney:

• At the very least, talk over your concerns with a lawyer or someone else you trust.
• Ask your attorney to account for how they have managed your affairs.
• You can cancel their authority under your power of attorney and use your back-up attorney. If you did not name a back-up attorney, you could cancel the power of attorney.
• It is a criminal offence to misuse a power of attorney. If your attorney is using your property or money for their own benefit without your consent, you should talk with a lawyer and the police.
• If you have an enduring power of attorney and later become incompetent, your attorney can be required to report on how they have managed your property. The application would be made to the Supreme Court of Nova Scotia by someone who believes that your attorney abused their power. The court could order the attorney to account to the Public Trustee. The court can also remove the attorney and appoint someone else to manage your affairs.
• An attorney can be ordered to give reports to the Nova Scotia Public Trustee Office. 

Under the Adult Protection Act, if an attorney or representative is neglecting the adult’s property or dealing with it in a way that is not in their best interests, or if an adult needs protection, a judge may inform the Public Trustee. The Public Trustee also looks into complaints about a representative under the Adult Capacity and Decision-making Act. 

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

The legal requirements of powers of attorney change from province to province, and outside of Canada. Your power of attorney may be valid if it was made outside Nova Scotia. To find out for sure, ask a Nova Scotia lawyer to see if it meets the requirements of the law here.

Is my power of attorney valid outside of 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 province or country. For example, say you and your spouse spend the winter in Florida and you have given each other power of attorney. You would need to ask a lawyer whether your power of attorney meetsthe laws of Florida.  And, you may need to have the power of attorney document authenticated for use outside Nova Scotia.

Where can I get more information on power of attorney?

• Contact a lawyer who does wills and estates work.  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.

• Read Being an Attorney: Legal Responsibilities

• Read “What every older Canadian should know about Powers of Attorney and Joint Bank Accounts,” a federal and provincial government publication.

Who can be an attorney?

To be an attorney in Nova Scotia you must:

• be at least 19 years old
• be able to understand your legal responsibilities
• be trustworthy, and
• be willing and able to take on the role

You do not have to live in the same province as the donor, though it is easier if you do.  When you are an attorney you cannot take any personal benefit from the donor’s assets (estate) unless the power of attorney document specifically says you can.

If you are appointed as an attorney you cannot witness the document and neither can your spouse.

Are you ready to be an attorney?

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 you must make decisions only for the donor’s benefit, not for your own 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 not agree with your decisions.  See ‘What general legal duties do I have’ for more about what it means to be a fiduciary.

Here are a few things to consider 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 personal interests 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.

4. Here are some more factors to consider before you decide:

• 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 who has 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?

Can I say no if someone asks me to be their attorney?

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. If you are surprised by a power of attorney appointment and do not wish to act, you can say no.  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 'Can I stop being an attorney' for more information.

When can people make decisions for themselves?

A person can make decisions for themselves when they have capacity. Capacity is the ability to do or understand something. In decision-making, capacity means the person can understand:

● the information needed to make a decision, and
● what could happen because of making or not making a decision.

The law says all adults (age 19 or over in Nova Scotia) have capacity to make their own decisions unless there is clear evidence to prove they do not. 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 a decision 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, an adult may have capacity to understand and agree to a simple medical procedure but may not be able to understand and make decisions about complex property, financial management and investment decisions.

A person might not have capacity because they are sick or weak and not able to think clearly. They may also be not mentally capable if they have a disease, like Alzheimer’s, that affects their ability to think and remember. Many people who are sick or who have Alzheimer’s disease can still make some decisions for themselves. People can also become mentally capable again after losing capacity. For example, someone with a long-term illness could start taking medication that improves their cognitive abilities.

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

Who decides whether a person has capacity to manage their own property?

Depending on the type of power of attorney, the document may say who can assess capacity. Or, the document may be effective from the date it is signed without any capacity assessment. See 'When do I start to act or make decisions for the donor?' for more information.

In some cases a formal capacity assessment may be needed, 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 be authorized to do capacity assessments if they have completed specific training developed by the Nova Scotia Public Trustee’s Office. 

If a person has not already done an enduring power of attorney and they become incapable of managing their own affairs, their capacity may be assessed under the Adult Capacity and Decision-Making Act, and someone may need to apply to court to be appointed as the person's representative to help them make decisions.  Go to the page on Adult Representation for information about the Adult Capacity and Decision-making Act. 

When do I start to act or make decisions for the donor?

As long as they have capacity the donor can still make decisions and manage their own finances and property, and can also revoke (cancel) the power of attorney if they wish.

Read the enduring power of attorney document to find out when it takes effect. It might start right away.   Or it might start only if some “triggering event” happens — for example, when a capacity assessor determines that the donor can no longer make their own financial and property decisions. 

Most enduring powers of attorney in Nova Scotia take effect right away on signing, but may not need to be used right away.  You may not need to take any steps on the donor’s behalf unless the donor asks you to, or until the donor needs you to act because the donor has become incapable of managing their own affairs. If the document takes effect right away when it is signed, generally no capacity assessment would be required in order for you to act.

Some enduring powers of attorney come into effect only when a professionally qualified capacity assessor determines the donor is no longer capable of managing their own finances and property. These are rarer as in some cases it is difficult for a capacity assessor to confirm complete incapacity.  If a formal capacity assessment is needed, it 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 be authorized to do capacity assessments if they have completed specific training developed by the Nova Scotia Public Trustee’s Office.  

To sum up, with an enduring power of attorney your power may start right away and then continue, or ‘endure’, even if the donor becomes mentally incapable. Or your power may start only if the donor becomes mentally incapable. To be an enduring power of attorney, the document must clearly say that your authority continues after the donor loses capacity.  If it does not say that, your power ends if the donor becomes mentally incapable.

What are my first steps when I start to act as power of attorney?

1. Review the power of attorney document

• When does it come into effect?
• What you are being asked to do?
• What limits are put on your authority?
• Are there any other attorneys?
• Are you to be paid for your work or only reimbursed for out of pocket expenses?

2. Learn about your legal duties

• You have 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 ‘What general duties do I have’)
• You must keep good records and must 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’)

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. 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 information should I know as power of attorney?’

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 paperwork (a folder for employment history, list of bank accounts and bank statements, income tax returns, insurance papers, etc.)

What general legal duties do I have as an attorney?

As an attorney you are 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 obligations that limit how you must carry out your powers on the donor’s behalf.

You have a legal 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
• 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 wellbeing above saving money for others who may inherit their money.  Remember, it is the donor’s money and property and 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. 

Involve the donor in decision-making whenever possible.  Ask the donor what they want.  If they do not have capacity to make their own decision, be guided by what you know of the donor’s values, wishes, beliefs, attitudes about money and past actions.

You must keep a record of your work as an attorney
Keep current, detailed and accurate records of what you do as an attorney.  This is a legal duty.  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’, or 'passing of accounts'.

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.

You should keep:

• 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 correspondence (examples are leases, notices from landlords and employers, insurance information).

You must keep your bank accounts separate from the donor’s bank account(s). Never mix your accounts or property with the donor’s unless that was already done before the donor lost capacity. 

What powers do I have?

You have the authority to make any decisions about financial and property matters that the donor could legally make, subject to any conditions or limits stated in the power of attorney document.

You should look at the power of attorney document to find out what you are being asked to do and how much power you have.

Your power might be limited to a single decision or task, or it might be very broad.

The donor may have put some limits on your powers and may have listed some specific things that you cannot do, or that you must do on their behalf.

In addition, 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
• Give your authority 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.

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 as long as the document says you can, and as long as the donor will have enough money left to meet their personal care and health care needs, those of their dependents, as well as satisfy any other legal obligations the donor may have. 

You are liable if you misuse the power of attorney
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.

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

If you are not sure what powers you have, it is a good idea to review the document with a lawyer.

Common responsibilities of an attorney

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.

What documents and information do I need as attorney?

When you start acting as an attorney under a power of attorney document you must find the original signed document. It is a good idea to get some notarized (true) copies of the power of attorney document. You will need to have the notarized copies for banks and others who will need to 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, magazine 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 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.

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, as long as 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. 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 marital status of the donor. If the donor is married or in a registered domestic partnership, be aware of spousal rights.

Can the donor have more than one attorney?

Yes, the donor can choose more than one attorney. When this happens they are co-attorneys and must work together and make unanimous decisions. Problems can arise when the document allows the attorneys to work together or on their own. Be careful not to accept such a role unless you are sure you can work with the other named attorney. Even if attorneys are acting on their own, each attorney should make sure that everyone is acting in the best interest of the donor.

The power of attorney may appoint one attorney for certain tasks and another attorney for other tasks.

If there are multiple attorneys working together and one of them becomes unable or unwilling to continue acting (due to resignation, death, illness), the remaining attorney(s) can continue acting as attorneys.

Can I ask others to help me in my role as attorney?

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 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.

How can I manage conflict with other people involved?

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 in the donor’s best interests. To help avoid conflict, you may want to keep them informed about any big decisions you make and explain why you are making these decisions. Showing them respect and considering their opinions may help them feel included, even though you are the ultimate decision-maker.

Can I make personal care decisions for the donor?

You can only make personal care decisions (which includes health care decisions) for the donor if they have given you authority to do so in the document. Allowing someone to make personal care decisions is usually done in a separate document called a personal directive that names a delegate (person appointed to make personal care decisions on the behalf of the person who made the directive).

A donor is allowed to 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.

Do I sign my own name when acting as attorney?

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)

Can the donor revoke my power of attorney?

Yes, the donor can revoke the power of attorney at any time as long as they have mental capacity to revoke it. This means they understand what it means to revoke the power of attorney. If the donor revokes your power of attorney and you think they did not have capacity, or that there was fraud or abuse involved, it is a good idea to contact a lawyer. You can apply to court to review the matter.

When does my power of attorney end?

Your power of attorney ends when:

• The donor notifies you that they are ending the power of attorney. This is called revoking the power of attorney
• The donor becomes mentally incompetent, unless you have enduring power of attorney
• The donor dies
• The donor becomes bankrupt
• A court orders it to end
• You properly notify the donor that you no longer wish to be the attorney
• You become mentally incompetent
• You die
• You become bankrupt and are not able to carry out your duties due to bankruptcy
• You are convicted of a crime in which the donor is a victim
• The task or length of time the power of attorney was created for is done or ends.

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.

Can I stop being an attorney?

Yes, you can stop being power of attorney if you become unable to continue acting as the attorney after you start.  You must give the donor notice that you are resigning.  The power of attorney document may name an alternate (back-up) attorney to act if you become unable or unwilling to act. If so, find out if the alternate attorney is willing to take over the role. The document may say what steps the alternate attorney needs to take to become recognized as the new attorney.

If the donor no longer has mental capacity and you have enduring power of attorney, 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.  You will likely be required to file an accounting with the court of all money spent on the donor's behalf before you are released from your duties. That is why you must keep good records.

It is best to get legal advice on how to properly resign and be released.

Important terms

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 custodianis 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 – An estate is 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 - An executoris someone 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.  For more information, see 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 person 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.

What is the Public Trustee?

The Public Trustee Office is an independent provincial office that has the authority to manage the financial and health care needs for certain people when no one else is willing, suitable, or able to act.

The Public Trustee Act authorizes the Public Trustee to act as representative (adults) or guardian (children), custodian or trustee of a person who is unable to care for their own affairs.  It also authorizes the Public Trustee to act as executor or administrator of the estate of a person who has died.

You will find more information on the Nova Scotia Public Trustee website at gov.ns.ca/just/pto/.

What does the Public Trustee do?

The Public Trustee often acts when no one else is able to take responsibility for a person’s estate. Situations when the Public Trustee can act on behalf of members of the public include:

• Acting as a trustee for a minor who receives money in an insurance settlement or inheritance but does not have a parent or guardian who is able to manage the money.

• Serving as a representative for an adult in need of representation who is not able to manage their own finances and has not appointed an attorney to act for them.

• Investigate complaints about misuse of a representation order or guardianship order. If you wish to submit a complaint to the Public Trustee, you can contact them online at [email protected] or 902-424-7760.

• In certain situations, applying to the Probate Court to be appointed as the administrator or personal representative of a deceased person’s estate.

• Giving medical consent for a mentally incapable person if there is no one else who can do this. If a patient has not appointed a delegate, the doctor will speak with family members. The Hospitals Act lists which family members may be asked to give medical consent. If no one is available or willing to give medical consent for the patient, the hospital contacts the Public Trustee. The Public Trustee is the decision-maker of last resort.  The Public Trustee carefully reviews the medical request for treatment. If treatment is in the best interests of the patient, the Public Trustee will give medical consent. In making its decision, the Public Trustee will try to learn if the patient has ever expressed any wishes concerning the medical treatment and will try to make a decision that respects these wishes. 

Also see the sections Representative Decision-making for an Adult, Powers of Attorney, and Health Care Treatment & Consent.

 

Is the Public Trustee required to represent everyone who asks for its help?

No. The Public Trustee accepts matters on a case-by-case basis and it will not do any of the following:

• help to mediate disputes in a family
• investigate financial abuse
• become the representative or guardian of the person (responsible for the physical care and well-being of a person).

What does the Public Trustee cost?

The Public Trustee is able to charge the same costs and fees as a lawyer. Often a judge will set the amount of costs and fees payable to the Public Trustee.  Generally, the fee for services provided is based on a percentage of the value of the person’s estate and is set out in the regulations under the Public Trustee Act.

Usually a judge orders that the costs and fees of the Public Trustee be paid from the estate of the person. Sometimes a judge will order that another person, who may or may not be directly involved in the process, pay the costs and fees of the Public Trustee.  The accounts of the Public Trustee are audited every year.

Where can I get more information about the Public Trustee?

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

You can also call, write, or make an appointment to visit the Public Trustee’s Office:

Public Trustee’s Office
Suite 405, 5670 Spring Garden Road Halifax, Nova Scotia
PO Box 685
Halifax, NS B3J 2T3
Tel: (902) 424-7760
Email: [email protected]

Public Trustee - Health Care Decisions Division
Phone: (902) 424-4454
Fax: (902) 428-2159
Email: [email protected] 

Important terms defined

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.

What is adult representation?

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, 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.

What is a representative and what do they do?

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 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.

Who needs a representative?

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, Powers of Attorney, and Being an Attorney, for more information.

What is capacity?

Capacity is the ability to do or understand something. In decisionmaking, 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 make their own decisions 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 you 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.

How is a representative appointed?

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

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

• the wishes of the adult
• 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.

Who can be a representative?

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.

Can the court appoint more than one representative?

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. 

How do I apply to be a representative?

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 on) 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, or 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).

What does a representation application cost?

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 (September 2021) 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 weeks 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. 

Who can do a capacity assessment report?

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.

What rights does an adult have?

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, adults 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 the representation order reviewed, and to remove their representative decision-maker.

Does an adult have to cooperate with an assessment?

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.

How does representation end?

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.

When should I ask the court to review a representation order or an older guardianship 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 for an adult 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 for an adult 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.

Complaints or concerns about a representative

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 Community Services.

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.

Do representatives get paid?

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.

Can I manage an adult’s finances without being a 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, and Being an Attorney.

Can I make decisions about my finances and personal care before I need a representative?

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. 

Where can I get more information

• Public Trustee
• Nova Scotia Legal Aid
• A lawyer in private practice who does estates work, including adult representation
• Legal Information Line, Lawyer and Mediator Referral Service - For legal information or a referral to a lawyer in private practice.

What is fraud?

Fraud is intentional deception. Fraud is a crime. Some types of fraud are referred to as scams or schemes.   Fraud affects all age groups.  Fraud usually causes financial loss for the victim.  The internet has created new opportunities for fraudsters.

The person who is deceived is generally called the victim or mark. The person who does the deceiving is generally called a fraudster, a scam artist, a perpetrator, or a thief.

Fraud can be very profitable for criminals. Fraudsters are hard to catch because they are skilled at what they do, they manage to disappear before being caught, and they may not even be located in Canada.

Victims are often too embarrassed to tell anyone, and so many frauds do not get reported.

What is consumer fraud?

Consumer fraud is intentionally deceiving a person who buys a product or a service.  For example, you are deceived into paying money for something that does not exist, is not accurately described, or is of little or no value.  Another example is being deceived into providing information that allows a fraudster to steal from you. 

Consumer fraud happens when a person, a group, or a company takes advantage of individuals, usually for monetary gain.

How does consumer fraud happen?

Fraudsters approach their victims in many different ways:

• coming door to door
• calling on the telephone
• sending mail through the postal system
• sending emails, using social media, or other online services
• meeting in a coffee shop, club, church or other place.

They may attract you with a TV commercial, a magazine article, a newspaper advertisement, a website, a survey, or through social media.

A fraudster can cause you financial loss without having to make any personal contact with you. They are always thinking of new and different scams to take advantage of people.

What are common kinds of scams?

Unfortunately there are so many types of scams they cannot all be listed here, and it is also difficult to guess what the next new scam will be. Examples of some of the more common consumer fraud scams include:

Identity Theft: The fraudster uses your personal and financial information to steal from you. This is the top fraud across North America.

Advance Fee Fraud: You are asked to make a payment or to give your personal or financial information before you receive a product or service.

ATM, Credit Card, and Debit Card Fraud: The fraudster uses your pass codes and card numbers to withdraw cash from your accounts or to pay for purchases with your credit.

Counterfeiting: The fraudster pays for purchases with fake money, cheques, or money orders.

Door to door frauds: The fraudster comes to your door and says “I was driving by and noticed that your roof needs repair.” Or “I have some left- over materials I can sell you at cost.” Or “I’ll need a 50% down payment to purchase materials.” Always check with the Better Business Bureau or a neighbour who has used them before hiring any person to do work on or in your home.

False Charities: The fraudster pretends to be a charity (sometimes by using a similar name, thanking you for your past support, or by trying to take advantage of a disaster such as an earthquake or flood). Sometimes the fraudster will go door to door pretending to collect donations for a charity.

Impersonation: The fraudster pretends to be someone or something else for personal gain; for example, someone pretends to be a grandchild who needs money.

Investment Fraud: The fraudster misleads you into giving money for business ventures that promise unrealistic profits.

Misleading Job Opportunities: The fraudster promises a large income for easy work, a fee or a start-up investment, or an almost guaranteed job after an expensive course.

Online Auctions, Lotteries, and Contests: The fraudster tricks you into purchasing items of little or no value, or into buying tickets or prizes that do not exist or have little value.

Contact the Canadian Anti-Fraud Centre and Consumer Affairs Canada for more information about current scams, including COVID-19 scams 

Recognizing fraud

If it sounds too good to be true, it usually is. Here are some things you can look for that will sometimes point to a scam:

• contact from strangers looking to offer you a deal
• over-excited callers using a lot of pressure
• people pushing you for immediate answers or confirmation of a deal
• people who insist that you not tell anyone else about the deal
• people who discourage you from getting any advice or advice only from a person they suggest
• any deal in which what you earn will be based on how many people you involve in the deal
• people who will not send you any information until you give them money or information
• any deal where you have to pay a fee or buy something before you receive a prize, credit, or product that you did not order
• prices so low they are unreasonable compared to their true value
• any reward, prize, or payment (usually very large) you are promised in exchange for your banking information
• contact from people, businesses, or creditors that you do not know
• people claiming to represent a charity that you do not know or that has a name very close to a charity that is well-known
• companies that try to sound like a well-known agency or company
• people contacting you for your credit card, calling card, banking information, or social insurance number
• any claim that you have won a prize for a contest you have not entered
• people saying they are calling from your bank and asking you to provide information about your account to help them catch a fraudster

What is identity theft?

Identity theft is getting your personal information and using it to steal from you.  Identity theft is now the fastest-growing fraud. 

Personal information might include your address, date of birth, social insurance number (SIN), credit card or bank card numbers, personal identification numbers (PINS) and pass codes, and driver's license numbers.  If identity thieves get your personal information, they may:

• take money out of your bank accounts
• charge purchases to your credit cards
• apply for new credit cards or loans in your name
• buy expensive items on credit in your name.

In extreme cases, identity thieves not only collect personal information about you, but they may also watch you. They learn about your friends and family members, and learn your personal weekly routine.  Then they decide how best to take advantage of you.  Sometimes they pretend to be stranded family members who urgently need money.  Sometimes they pretend to be you and arrange to mortgage or sell your house.

How do identity thieves get personal information?

Here are some of the ways identity thieves can get your personal information. They may:

• steal it from your wallet or purse, home, mailbox, workplace, vehicle, or computer
• go phishing, which means sending you an email threatening serious consequences if you don’t update information on a website at once. This gets you to go to the website so that they can get personal information such as passwords and access codes from you.
• pretend to be someone entitled to request information (such as a government official, bank employee, landlord, creditor, or employer)
• collect it from your garbage. (for example, bank and credit card statements, copies of credit or loan applications, financial statements, and tax returns.)
• redirect your mail, open it, and then put it in your mailbox
• rig automated teller machines (ATMs) and debit machines so your debit or credit card number and PIN can be read
• shoulder surf — hang around your shoulder to watch as you punch your access codes and passwords into ATMs, debit machines, telephones, and computers
• buy or trade customer mailing lists
• search obituaries, phone books, directories, and other public records
• place false advertisements for jobs to obtain your résumé and contact information
• pretend your personal details are needed to claim a prize or lottery winnings
• use letterhead that looks like it comes from a government department or financial institution to get personal information from you

Protecting yourself from fraud

The best way to protect yourself from fraud is to be informed and alert.

• Protect your personal financial information. Do not give any of your banking or credit card information to anyone you do not know and trust. Do not write down your PIN.
• Cover the keypad or keyboard when you are entering your passwords and pass codes, and look around you to make sure that no one is looking over your shoulder.
• Check before making purchases when you are not dealing face to face with someone you know, ask for a name and contact information, and make sure the person is who they claim to be.
• Get at least two written quotes for all repair work; ask for references and check them; check for complaints at the Better Business Bureau; and don’t agree to pay all the money up front.
• Be aware that police and financial institutions never call or email you to ask for your bank card information, credit card details, or banking details.
• Do not provide more personal information than is necessary for your business.
• Only give your SIN when absolutely necessary, and do not carry your SIN card with you. Businesses such as stores should not be asking for your SIN number.
• Do not give your address and phone number unless there is a good reason.
• Carry only the documents and cards you need.
• Do not leave your purse or wallet unattended.
• If you are paying by debit or credit card, make sure that your card number does not appear on the receipt.
• If you are paying with a debit or credit card in a restaurant, keep your card in sight. Arrange to pay at your table or go with the server to process the card.
• Shred receipts and copies of papers you no longer need such as bank statements, tax returns, credit applications and statements, receipts, insurance forms, and credit offers you get in the mail.
• Do not leave personal information sitting around at home, in your vehicle, at your workplace, or on your computer.
• Keep important documents such as your birth certificate, tax returns, and social insurance card in a secure place.
• When you receive renewal documents and cards, destroy the old ones and sign the new ones right away.
• Know when your credit card and financial statements and utility bills are supposed to arrive in the mail.
• Keep credit card, debit card, and ATM transaction records so you can match them to your statements.
• Check your bank and credit card statements carefully to ensure that there are no withdrawals or charges that you were not expecting.
• Update your credit cards to ones that have the latest security features, for example, “chip cards” which require a PIN because they are embedded with a micro-computer chip.
• Let your credit card company know when you are leaving the country. Your credit card company should contact you if there is unusual activity on your card such as stays at international hotels.
• Lock your mailbox.
• Pick up your mail promptly.
• Do not pick pass numbers (for your credit card, bank account, etc.) that refer to your personal information (like your birth date or SIN).
• Do not pick passwords that can be easily be guessed such as the name of your pet.
• Use spyware filters, email filters, and firewall software on your computers.
• If you use secure internet sites for financial transactions, follow security instructions when you enter and leave the site. Under the “Tools” section in your web browser, click “Clear Recent History” when you are done.
• Be sure all personal information is deleted before you sell, recycle, or discard your computer. You may have deleted files, but the information may still be on the hard drive.
• Consider signing up with the National Do Not Call List, which prohibits most businesses that you don’t deal with from contacting you by phone.

What can I do if I suspect that I am the target of fraud?

If you suspect that you are the target of fraud, do not deal directly with the person you think is trying to deceive you.  Do not agree to provide further money to get your first payments back or to keep a deal open.

You can contact your local police or RCMP detachment and the Canadian Anti-Fraud Centre. You may also report the crime online through some of the websites listed at the end of this section under "More Information".

You should also contact Equifax Canada and TransUnion Canada. They are credit reporting agencies. They can place an alert on your account so creditors must call you before opening any new accounts or changing your existing accounts. Also, ask them to send you a copy of your credit report so you can see if an identity thief has opened any new accounts or debts in your name.  The Financial Consumer Agency of Canada has information about credit reports, and credit reporting agencies.

Who should I contact if I have been the victim of fraud?

If you have been the victim of fraud, you must contact the financial institutions and credit card companies where you have your accounts. Tell them what happened and have them freeze your accounts. If the fraud has affected your account, it must be closed. You will need to open new accounts.

You should contact the police or RCMP to report that you have been the victim of fraud, no matter how small your loss may be. They may start an investigation.

You should also contact Equifax Canada and TransUnion Canada. These credit reporting agencies can place an alert on your account so creditors must call you before opening any new accounts or changing your existing accounts.  The Financial Consumer Agency of Canada has information about credit reports, and credit reporting agencies.

Report the fraud to the Canadian Anti-Fraud Centre.

If your government-issued documents were lost or stolen, contact the department, explain what happened, and ask for new documents. You will likely need to do that in writing.  Contact Service Canada at 1-800-206-7218 if your social insurance number (SIN) has been stolen.

If you think your mail is being stolen or redirected, contact Canada Post at 1-800-267-1177 or canadapost.ca.

Quick tips

• Know the source. This means checking into a Web site before handing over any personal information — especially personal financial information. This doesn’t mean you can’t shop or surf at unknown sites, but make sure you’ve done your homework before exchanging information.
• Read your e-mail carefully. Many fraudulent offers come in the form of e-mails because the Internet makes it possible to send thousands at a relatively low cost. Use a mail program that allows you to screen out these mass mailings, and you’ll spend less time with your finger on the delete key.
• Deal only with reputable organizations, and don’t give out personal or financial information unless you are sure you’re in a secure environment. Don’t judge reliability by how nice or sophisticated the Web site may seem.
• Be careful at auction sites, one of the areas that generate a lot of complaints.
• Understand as much as possible about how the auction works, what your obligations are as a buyer, and what are the seller’s obligations.
• Find out what the Web site/company does if a problem occurs and consider insuring the transaction and the shipment.
• Learn as much as possible about the seller, especially if the only information you have is an e-mail address. If it is a business, check the Better Business Bureau where it is located. Examine the feedback on the seller. Remember because of the difference in laws, it may be much harder to solve a problem if the seller is located outside Canada .
• Find out if shipping and delivery are included in the auction price or are additional costs. If they are extra, find out exactly how much you’ll be charged.
• Don’t give out your social insurance number or driver’s license number.
• Don’t give out your credit card number(s) online unless the site is secure and reputable. Sometimes a tiny padlock appears on the screen. This symbolizes a higher level of security to transmit data. While not a guarantee, it may might provide you with some assurance.
• Don’t invest in anything you are not absolutely sure about. Do your homework on the investment to ensure that it is legitimate.
• Be sceptical of individuals representing themselves as Nigerian or foreign government officials asking or your help in placing large sums of money in overseas bank accounts.

More information

For more information, including ways to protect yourself from fraud:

• Contact the Canadian Anti-Fraud Centre (CAFC) online, or call 1-888-495-8501.  The Canadian Anti-Fraud Centre (CAFC) is the central agency in Canada that collects information and criminal intelligence on issues like  mass marketing fraud (e.g., telemarketing), advance fee fraud (e.g., West African letters), Internet fraud and identification theft complaints
  
  
• COVID-19 Fraud information from the Government of Canada and the Canadian Anti-Fraud Centre
  
  

• Legal Information Society of Nova Scotia Investor Rights and Protection Guide: legalinfo.org/guides/investor-rights-and-protection-guide/ 

• Financial Consumer Agency of Canada: Information about identity theft, types of fraud, counterfeit money and other threats or scams; protecting yourself from fraud; reporting fraud
  
  

• Report suspicious or unsolicited emails (e.g. phishing, malware, deceptive marketing, etc.) to the Spam Reporting Centre

• Get Cyber Safe : Federal government site all about staying safe online, for individuals and businesses: getcybersafe.gc.ca
  
  
• Contact Service Canada at 1-800-206-7218 if your social insurance number (SIN) has been stolen
  
  
• Little Black Book of Scams:  easy to use reference guide filled with information Canadians can use to protect themselves against a variety of common scams from Consumer Affairs Canada.  Consumers and businesses can consult The Little Black Book of Scams to avoid falling victim to social media and mobile phone scams, fake charities and lotteries, dating and romance scams, and many other schemes used to defraud Canadians of their money and personal information
  
  

• Competition Bureau of Canada: An independent, federal government agency concerned about competitive markets and consumer information. It investigates complaints and enquiries from the public about consumer issues such as deceptive product labelling and price fixing. Website: competitionbureau.gc.ca

• Royal Canadian Mounted Police, Scams and Frauds page: rcmp-grc.gc.ca

• National Do Not Call List (Canadian Radio-Television and Telecommunications Commission): If you have complaints about a telemarketer, or wish to register a number on the Do Not Call List. Website: lnnte-dncl.gc.ca
  
  
• Service Nova Scotia consumer information from Nova Scotia government
  
  
• Better Business Bureau of the Atlantic Provinces: Tips for consumers; Check out a business or a charity; File a complaint; Information for businesses.

abuse

any act or neglect to act which threatens the health, security, or well-being of a person

access

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

access order

a court order that provides for contact between a dependent and the person applying for contact, such as visits, phone calls, emails, mail

account

the act of proving what one has done to meet one’s responsibilities administrator: the person appointed by the court to fill a role, e.g. the role of executor if none was named in the will of a deceased person

adult

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

Adult Capacity and Decision-making Act

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.

affidavit

a legal statement that is sworn or affirmed before a Commissioner of Oaths or a notary public affidavit of execution: a statement sworn by a witness about the signing of a document

assessor

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.

asset

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

assisted suicide

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

attorney

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

beneficiary

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

bond

a type of insurance policy

capacity

to be competent to perform a specific task, such as agreeing to a medical procedure. Also see testamentary capacity.

capacity assessment

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

capacity assessment report

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.

clause

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

codicil

a legal document written to change part of an existing will

cohabitation agreement

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

Commissioner of Oaths

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

common law partner

a person in an unregistered live-in relationship with a partner of the same or opposite sex. See common law relationship.

common law relationship

an unregistered live-in relationship with a partner of the same or opposite sex

competent

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

conciliation

a process in family court for negotiating a custody or access agreement between two parties with assistance from a conciliator talking to the parties separately

consent

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.

consent order

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

consumer fraud

the intentional deception of a person who buys something

contact time

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. It is a term used in Nova Scotia’s Parenting and Support Act. See access, parenting time.

custodian

a person who has legal care and control of property that belongs to someone else

custody

the care and control of a child

cyberbullying

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

delegate

the person legally authorized to make decisions for another person. Also informally called a proxy.

dependent

a person whom another person is under a legal obligation to support, such as a spouse or a child under age 19

domestic partnership

see registered domestic partnership

donor

the person giving someone else the authority to act on her or his behalf

elder abuse

see senior abuse

enduring power of attorney

a legal document which authorizes a person, called a delegate, or company to act on behalf of another person, even if the person becomes mentally incapacitated or incompetent. One type of power of attorney.

enforcement order

a particular kind of court order which gives the police the power to enforce a contact order

estate

all of the property owned by a deceased person when they die

euthanasia

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

execution

the formal signing of a legal document

executor

the person named in the will of a person who has died, responsible for seeing that everything is handled properly

fraud

intentional deception. Also called a scam.

fraudster

a person who commits a fraud

general power of attorney

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

guardian

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.

holograph will

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

identity theft

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

incompetent person

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

instruction directive

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

interaction

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

intestacy

the state of dying without leaving a will

intestate

to die without a will

inventory

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

joint tenancy

a type of ownership of property in which each person has equal ownership. See tenancy in common.

least intrusive

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

living will

a form of instruction directive in which a person sets out one’s 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.

marriage contract

a prenuptial agreement between two persons who are planning to marry to one another

mediation

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

mediator

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

medical consent

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

neglect

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

notary public

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

order

a document authorized and signed by a judge

ordinary power of attorney

see power of attorney.

parenting time

the time a child spends with a parent or guardian because of a court order or agreement. It is a term used in Nova Scotia’s Parenting and Support Act.

permanent care

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

personal directive

a type of advance health care directive which allows you to authorize someone else to make decisions about personal care and consent to medical treatment on your behalf

personal representative

an executor of a will or administrator or an estate

phishing

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

probate

a legal process to deal with a person’s estate after his or her death

property

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

power of attorney

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

proxy

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.

proxy directive

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

Public Trustee

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

registered domestic partnership

a declaration filed with the Province of Nova Scotia by two people of the same or opposite sex who are living in a conjugal relationship

renunciation

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

representative

a person with legal authority to make decisions for another adult under the Adult Capacity and Decision-making Act.

representation order

a court order that appoints someone to be a representative.

representation plan

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

residuary

any property remaining after all specified gifts in a will have been paid or given to one or more beneficiary

retainer

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

revoke

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

scam

see fraud.

seeking leave of the court:

getting the court’s permission to make an application to ask it for something, such as custody.

senior abuse

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

serve

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

shoulder surf

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

specific power of attorney

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

spouse

two people who are married to each other

springing power of attorney

a specialized enduring power of attorney document which says what future event will cause it to come or “spring” into effect. Also see power of attorney.

surety

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

tenant

a person who owns an asset, such as a joint bank account

tenancy in common

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.

testamentary capacity

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

testator

a person who makes a will

trust company

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

trustee

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

trustee in bankruptcy

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

undue influence

a situation in which someone exerts an inappropriate amount of pressure on another person, for example while he or she writes a will

will

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