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?

• 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?

• 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?

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?

Where do I go to plan my own funeral?

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: www.gov.ns.ca/legislature/legc/statutes/cem_funs.htm

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, Halifax Regional Municipality’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?

What is the difference between custody, access, contact time, and interaction?

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.

Access usually refers to the child’s legal right to visit or spend time with a parent or guardian. It is also called parenting time. Children may also   have access to grandparents or other family members. Access by anyone other than a parent or guardian may also be called contact time. Access may be set out in a court order or agreement. It could mean weekly or monthly visits, overnight stays, or holiday time together. The federal Divorce Act uses the term “access.”

Parenting time is 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.

Contact time is 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. Contact time is sometimes alsocalled access.

Interaction means communicating with a child outside of parenting
time or contact time. 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.

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

No. If your child becomes a parent while under the age of 19, the Department of Community Services decides if they are able to care for their child. If your child still lives at home, you have a duty to support them. However, they have the right to make decisions about their own child. If you want custody of your grandchild, you must ask the court for leave to apply for it.

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

If you wish to apply for custody of your grandchild, or parenting time, you must ask for the court’s leave. Leave is permission from the court to apply for custody. When you ask for leave, you must explain to the court why you are asking to have custody of your grandchild, and what role you play or have played in your grandchild’s life. You can apply to court for contact time or interaction with your grandchild without asking for the court’s leave.

A judge will always do what they feel is in the child’s best interests, or what is best for the child. This is not always what you feel is best. A judge will let you have contact time or interaction with your grandchild if they think it is best for the child. Even if the court gives you leave to apply for custody of your grandchild, it might not give you custody.

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

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

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

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

• whether the child’s parents or guardians are willing to support contact
  time
• whether an order for contact time is needed to allow the child to see
  their grandparent(s)

Could the court give joint custody to a grandparent?

Joint custody means that two or more people make the big decisions about the child together. An order for joint custody between a child’s parents and grandparents will probably only happen if both agree. For example, if the child’s parents are very young, they may have trouble deciding what is best for their child and want help from the child’s grandparents.

It is possible for a court to order joint custody with a grandparent if the judge believes it is best for the child. However, it is not common.

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, contact time, 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.

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 time, or interaction?

You can start an application for custody, contact time, 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 online to nsfamilylaw.ca under “Getting legal advice and finding a lawyer.”

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 for custody or contact time?

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 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 orderedcontact time 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.

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 custody or parenting arrangements
• an address change affecting your ability to visit your grandchild
• a change in your grandchild’s schedule that affects contact time 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 using 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, 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 danger, the department may remove them from their home and take them 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. Care can be temporary or permanent. 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. A judge may decide not to place a child with relatives if that is not in the child’s best interests. If a child is not placed with relatives, the child can still visit family, relatives, and friends unless the court says that this may be harmful to the child.

A child in care may be adopted if the court agrees that is in their best interests. A grandparent who wants to adopt their grandchild must ask the court for leave to apply. 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 under “Custody and Access.”

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.

Important Terms

Capacity – The ability to understand information that is relevant to making a personal care or medical decision and the ability to understand the consequences of a decision or lack of a decision.

Consent – To agree or give permission to a personal care or medical treatment decision.

Delegate – Someone who you authorize to make personal care or medical treatment decisions for you if you cannot make them yourself.

Informed consent means that you have received all information necessary to make your decision, including your medical diagnosis, available forms of treatment, and availale options to relieve suffering.

Personal directive – A legal document authorizing another person to make personal care or medical decisions for you.

Representative – A court may appoint a representative to make personal care or medical decisions for you if you cannot make them yourself and you have not appointed a delegate.

Who consents to medical treatment for me if I cannot?

Everyone in Nova Scotia has the right to make decisions for themselves about personal care and medical treatment as long as they have the capacity to do so. Capacity is the ability to understand information that you need to make a personal care or medical decision. It is also the ability to understand what can happen as a result of making a decision or not making a decision.

You can prepare for a time when you may not be able to make health care or personal care decisions for yourself by writing a personal directive while you are well. A personal directive is a legal document that names another person to make personal care or health care decisions for you. This person is called a delegate or a proxy. 

If you have not named someone to consent, or agree, to health care decisions, your doctor will ask your closest family member to consent for you. They will ask people in this order:

• spouse (including legally married spouses, registered domestic partner, or common-law partner),
• adult child,
• parent,
• grandparent,
• grandchild,
• aunt or uncle,
• niece or nephew, and then
• other relatives.

There is another way that someone could be named to make health care decisions for you when you cannot do it. A relative or friend can apply to the court to be named as your Representative. The courts might allow them to give consent to health care for you. Before naming a representative, a judge must establish that you are not able to consent and that the best thing for you is to have a representative. For more information, see the section on Adult Capacity and Decision-making.

In very unusual cases, there is no representative or other person who can consent for you. In these cases the Nova Scotia Public Trustee may be asked to give consent for you and might agree to take on this task. The Public Trustee is a government office that manages the affairs of some people who cannot do it for themselves.  For more information, see the Public Trustee’s website.

How do I name a delegate?

You must write a personal directive. In it, you may name any person to be your delegate who is at least 19 years old and mentally competent. If you want to name your spouse or partner and they are not yet 19 years old, you may do that. Mentally competent means the person must be able to make important decisions. The delegate does not have to be related to you.

Choose someone you can trust to carry out your wishes. Talk with your delegate about your wishes for your health care.

Your directive must be in writing, and you must sign it. A person who is not your delegate or their spouse must witness your signature. Name a back-up delegate in your directive. This is in case your first choice cannot act for any reason, even for a short time. For example, your delegate could be travelling in another country. In that case, your back-up delegate could make decisions for you. Your delegate could make decisions for you once they returned to the country or they could be reached.

Your personal directive could include instructions for your care, directions on who to consult about your care or who to notify about your circumstances, and how a delegate may be compensated for taking on this role.  The people giving you health care would need to respect those instructions if they could not reach your delegate or back-up delegate.

Do I need a lawyer to prepare a personal directive?

You don’t have to talk to a lawyer when you write your personal directive, but it is a good idea. Your lawyer can make sure that your directive meets all the legal requirements and says clearly what you want it to say.  Lawyers charge a fee based on the amount you want them to do.  The fee depends on how complex the work is.  You should discuss the fees with the lawyer before you decide to hire them. 

Talk with your regular health care provider — your doctor or nurse — when writing your directive. This will help you to decide what treatments you agree to. Your doctor can explain the different ways to treat your medical condition and can give the best instructions for your needs. Without medical advice, your instructions might not give the results you want.

What should I do if a hospital or care facility asks me to sign a standard personal directive form?

Some health care and residential care facilities use standard personal directives when patients or residents are admitted. These directives may include instructions that you would not want. For example, they might include a do-not-resuscitate order. 

You do not have to sign this standard form. Also, a hospital or health care facility in Nova Scotia cannot refuse to treat you or admit you just because you refuse to sign their directive. The Personal Directives Act says it is against the law for these facilities to demand a personal directive.

If you get a standard form, review it with your health care provider (your doctor or nurse)  before you decide whether to sign it. You might also show it to a lawyer. Do not sign a standard directive form if it would not give you the health care results you want. Instead, talk with your family about your health care wishes. You may want to write your own directive if you don’t already have one.

Many facilities will ask you if you have a personal directive. If you have one, give the facility a copy for its files.

How specific should my health care instructions be?

Your directive should be clear and detailed. Include the types of treatments you would agree to and those you would not agree to. Try to avoid broad statements that might reduce the options available for your treatment. For example, if you say you do not want to be given any medication, you might be ruling out a simple treatment that could ease your pain or help you overcome minor ailments during your illness.

Write down your values and beliefs in your personal directive as a way to assist in interpreting instructions and to help your delegate. 

Where should I keep my personal directive?

Give your doctor a copy of the directive to keep in your medical file. You could also give a copy to your delegate and to your close family members.

Keep the original at home in a special place. Tell your delegate or close family members where it is. Keep it in a firesafe box. 

Do not put your directive in a safe deposit box that is in your name only. If you do, your delegate may not be able to get to it. Although people who have been given copies of your directive may not need the original, your delegate should be able to get the original directive if needed.

For example, you could be in hospital and staff might not be able to find the copy you provided. A medical person who does not know you might need to see the original. Keep a list of people who have copies of your personal directive with the original. If you are travelling, take a copy of your directive with you. If you are going into hospital or a continuing care home, take a copy with you.  Some people like to put their delegate's contact information in the document.

How often should I update my personal directive?

Update your personal directive when you make important life changes, like a common law relationship, marriage, remarriage, or divorce. Update it if your delegate or back-up dies or becomes unable to consent.

Review your directive from time to time with your doctor. Medical treatments change regularly as research improves them. You might want to mention new treatment methods and technology. If you have a specific illness or condition, review your directive more frequently to make sure you keep up to date on treatments. 

Organizations that deal with diseases (like cancer, AIDS, or Alzheimer’s disease) have good information about new treatments and care. They can also give you support and help you and your family cope with the illness.

You can always ask your doctor or your medical specialist for more information, or you can go online. If you get information online, check to be sure that it comes from a reliable source.

How can I end a personal directive?

You can revoke, or end, your personal directive at any time, as long as you have capacity. You can declare your intention to cancel your personal directive in writing, and have it signed and witnessed. You can also destroy all copies of the old directive and write a new directive if you want to. 

Tell your doctor, hospital, or health care facility that you ended your personal directive. Get back any copies you gave them. They need to know that you have changed your mind, whether or not you make a new directive. You should also tell your family members.

You do not have to write a new directive to cancel the old one. If you decide to make a new directive, then include in it a paragraph that ends (revokes) the old directive. Give a copy of your new directive to your doctor. You could also give a copy to your delegate and to your family members.

Will my personal directive be valid outside Nova Scotia?

The are legal requirements for directives to be valid in Nova Scotia. The law about directives is not the same outside the province. If you are outside Nova Scotia and you cannot consent, your directive might not be followed. It would have to meet the requirements in the province or country you are visiting.

Before travelling, review your directive and get advice from your lawyer. That will help to make sure that your directive will be followed if you cannot consent to treatment while travelling. If you plan to live outside Nova Scotia for some time, you may want to write another directive that will be valid where you are living.

How are personal directives different from euthanasia and assisted suicide?

Euthanasia means an act one person takes to end the life of another to relieve their suffering. Assisted suicide is the act of intentionally killing oneself with the help of another person.

In Canada, certain eligible Canadian adults can ask for medical assistance in dying.  Medical assistance in dying provides patients who may be experiencing intolerable suffering due to a grievous and irremediable (incurable) medical condition the option to end their own life with the help of a physician (doctor) or nurse practitioner.  Medical assistance in dying is only provided to legally eligible persons.

You can write a personal directive that asks your delegate to refuse treatments that would make your life longer. But you cannot ask your delegate to take active steps to end your life.

Why can’t I consent to medical assistance in dying in my personal directive?

Canada allows two types of medical help for people who want to end their lives. If you meet the criteria for medical assistance in dying, a physician or nurse practitioner does one of the following:

• gives you a substance that causes death, such as injecting a drug, or

• gives you or prescribes a drug that you take yourself to cause your death.

In both of these methods, you must be able to give consent when the substance is given or taken. This is to make sure that your death is what you wish at that moment. It makes sure that no one else makes this important decision for you. It also makes sure that you gave full, informed consent when you were helped to die.

Informed consent means that you agree to medical treatment or to refuse medical treatment after you have all the information you need to make your decision. That information could include a description of your illness or problem, ways it could be treated, and ways to lessen suffering.

You might include advance consent to medical help in dying in your personal directive in case it becomes legal at a later date. If you do, you should speak with a lawyer about the type of wording to include in the directive.

What are the criteria for medical assistance in dying?

To be allowed to have medical help in dying, all of the following must be true:

• You are eligible for health services funded by the federal government, or a province or territory.
• You are at least 18 years old and mentally competent – able to make health care decisions for yourself.
• You have a serious illness, disease, or disability that is advanced and cannot be reversed.
• You have unbearable physical or mental suffering that cannot be relieved in ways you consider acceptable.
• You are at a point where your natural death is reasonably foreseeable, taking your medical circumstances into account.
• You are asking for medical assistance to die on your own without pressure or influence from another person.
• You can give informed consent to receive medical help in dying.

 You do not need to have a fatal or terminal condition and you do not need a specific prognosis about how long you have left to live.

How can I get medical assistance in dying?

You must ask in writing for this help. You must say you want to have a medically assisted death. Some provinces and territories may need you to complete a special form. Your health care provider might give you this form, or it might be on a provincial or territorial website.  You will find information for Nova Scotia on the Nova Scotia Health Authority website: nshealth.ca/about-us/medical-assistance-dying

If you cannot write, another adult can sign the request for you.

You must sign the written request before two independent witnesses, who must also sign it. Everyone must write the date on the request. An independent witness is one who:

• will not gain something from your death,
• does not own or run a health care facility where you live or receive care, and
• is not directly involved in giving you health or personal care.

Can I withdraw my request for medical help in dying?

Yes, you may choose to withdraw your request at any time. You do not have to go ahead with medical assistance in dying.

Where can I find more information?

Nova Scotia Department of Justice, Personal Directives, including sample forms and answers to common questions: www.novascotia.ca/just/pda/

Government of Canada website about medical assistance in dying: www.canada.ca/en/health-canada/services/medical-assistance-dying.html

End-of-life care in Nova Scotia: call 8-1-1 to speak to a registered nurse or go to www.811.novascotia.ca

Medical assistance in dying in Nova Scotia: call the Nova Scotia Health Authority at 902-491-5892 or visit www.nshealth.ca/about-us/medical-assistance-dying

Dying with Dignity Canada: www.dyingwithdignity.ca

Caregiving Benefits and Leave:  Contact Service Canada at 1-800-206-7218 for information about Employment Insurance Caregiver benefits to help you take time away from work to provide care or support to a critically ill or injured person or someone needing end-of-life care.

Nova Scotia Caregiving Benefits and Leave: contact Nova Scotia Labour Standards at 1-888-315-0110 for information about unpaid leaves from work under Nova Scotia's Labour Standards Code, including Critically Ill Adult and Child Care Leaves, Compassionate Care Leave.  

National Palliatve Care and other end-of-life resources

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, for example, have any unpaid credit card bills, those debts must be paid first out of what is in your estate, and what is left may then be distributed following your will or the law that applies when someone dies without a will.

Your estate does not generally include:

• property that you own jointly with someone else
• life insurance policies with a designated beneficiary
• accounts such as a registered savings account or tax-fee savings account that allow you to list a beneficiary or someone who can receive the funds directly
• pension plans with a designated beneficiary
• land or buildings that are owned by a First Nation band.

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,
• 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,
• 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 disputes over your possessions.

What happens if I die without a will?

If you die without a will, Nova Scotia has a law that says what happens to your estate. The law is called the Intestate Succession Act. Intestate means dying without a will.

If you die without a will, or your will 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: 

• Surviving spouse, no children: all to spouse
• Spouse and one child: first $50,000 to spouse, the rest equally divided between spouse and child. 
• Spouse and children: first $50,000 to spouse, and the rest divided one-third to spouse, two-thirds to children. 
• No spouse or children: Whole estate to nearest relatives by blood or adoption, by order of priority as listed in the Intestate Succession Act. Relatives by marriage are not included.
• Children, but no spouse: all to child(ren)
• No surviving relatives: government inherits.

If the spouses did not jointly own the family home, a surviving spouse may choose to take the family home and household contents instead of, or as part of, the $50,000.

The Intestate Succession Act says a spouse is a surviving married spouse or a registered domestic partner. Children include biological and adopted children.

If you die without a will, your common-law partner will not automatically inherit your property. Common-law partners, a same- or opposite-sex couple who lives together but is not in a registered domestic partnership, are not on the distribution list in the Intestate Succession Act. The surviving common-law partner may have to go to court to make a claim on the estate. Common-law partners in a registered domestic partnership are covered by this law from the date they registered the partnership.

If you die without a will, your grandchildren will only inherit from your estate if their parent (your child) died before you.

If you and your spouse die at the same time or if you are a single parent when you die, someone will have to look after your children,  grandchildren or others who depend on you such as a person with a disability. If you die without a will, or if you do not name someone in your will to look after your children or grandchildren, the court will have to appoint someone to do this. That person will be called your dependant’s guardian. A person must apply to court to be appointed. And the person the court appoints might not be someone you would have chosen. 

If the court appoints a guardian to look after your children or other dependants, it will also often state the terms of the guardianship. Those terms might not be what you would have chosen.

If you die without a will, there will be extra steps in the process of settling your estate, which can 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 to 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. 

The intestate law also applies if you do not deal with all your property in your will. 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 federal Indian Act (status Indian) who ordinarily 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 ordinarily live on reserve

The federal Indian Act rules for making wills apply to status Indians under the Indian Act who ordinarily live on reserve.   The Indian Act does not apply to status Indians living off-reserve, or to non-status Indians living on-reserve - provincial laws apply instead.

If you are a status Indian who ordinarily lives on a reserve you can get information about making a will from:

• Indigenous and Northern Affairs Canada (Indigenous Services Canada) online at www.aadnc-aandc.gc.ca, under ‘Benefits and Rights’, then ‘Estates’
• a lawyer who does wills and estates law, and who knows about Aboriginal law and the rules that apply to wills for status Indians who live on reserve
• the Confederacy of Mainland Mi’kmaq (CMM) has a Mi’kmaw Wills and Estates series which includes:
  1. Book One: How to Write a Will 
  2. Book Two: How to Settle an Estate 
  3. Book Three: How to Write a Power of Attorney and Personal Directive
  4. Mi’kmaq Wills and Estates & Matrimonial Real Property 

Copies are located in band offices of CMM’s member bands or can be found online at cmmns.com/program/wills-estates/

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 an important legal document, so it is always best to have a lawyer write or at least review your will. However, the law in Nova Scotia does not say that a lawyer must write your will. 

Your will must be worded very carefully to make sure that what you want actually happens.

A lawyer can:

• make sure your will is clear about your wishes for after your death,
• make sure your will meets all legal requirements,
• make sure you plan for unforeseen events,
• help you deal with things that you might not have thought about yourself,
• tell you what you can do now to make it easier to deal with your estate after you die,
• answer any questions about dealing with your estate,
• give proof in the future that you made your will by your own free choice, free of undue influence, and
• give proof in the future that you had the capacity to make your will.

If you decide not to have a lawyer write your will, you can write it yourself or fill in a blank form of a will that you buy from a store or online. There are also books and kits available to help people write their wills. 

If you decide to write your own will, you should at least ask a lawyer to look it over to make sure that it meets all legal requirements and that it will do what you want it to.

A lawyer can help with special problems: 

• 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 $200 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 and we can put you in touch with a lawyer who does wills & estates work, or click here for other ways to find a lawyer.

Parts of a will and what a will looks like

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. You can read more about executors here.

Disposal of Property

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 do what you want with your property. 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 his children to inherit it if he 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.

  pdf Here is a sample will (77 KB)  to give you an idea of what a will might look like.

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. 

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. The witnesses must be at least 19 years old. They must not be people who benefit from the will or be married to someone who benefits. The witnesses do not need to know what your will says.

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.

You should also arrange for one of the witnesses to swear an affidavit of execution.

What is an Affidavit of Execution?

An affidavit is a statement sworn in front of a Commissioner of Oaths or a notary public. An affidavit of execution is a sworn statement that the witness saw you sign your will on a particular date, 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 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. 

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 that freedom. 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 if possible and if they need it. Under this law, dependents are your children, including adopted children, and surviving married spouse or registered domestic partner.

This law does not include your common-law and same-sex spouses as a dependent unless you have a registered domestic partnership. Then your spouse is included from the date you registered the partnership. Divorced spouses 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.

What is not part of your will?

Any assets you own jointly with others go directly to the surviving joint owner on your death. They don’t form part of your estate, but are said to "pass outside the will". For example, if you and your spouse own your home as joint tenants, the home goes directly to your spouse on your death.  If you do not want this to happen, there are legal ways to specify your intent and you should consult a lawyer.

Also, assets where you have designated a beneficiary, such as RRSPs and RRIFs, pass outside the will. When you die, the bank or trust company transfers the RRSP or RRIF, or pays it out, to the beneficiary you named, taking into account tax consequences. The same is true if you have life insurance that names a beneficiary.  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.

You can designate the beneficiary of a life insurance policy or benefit plan in your will, even though the proceeds “pass outside the will” and don’t form part of your estate. If you do, the beneficiary designation will alter any prev­ious designation. Similarly, a beneficiary design­ation you make in your will may be changed by a later designation that is not in a will.

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. 

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.

Here are some things to keep in mind:

• The best executor is a trustworthy, reliable, and competent adult.
• Choose someone who is likely to outlive you.
• Choose someone who lives in your province to cut down on expenses.
• 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.
• 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. 

You can name your lawyer as executor, but most lawyers do not act as executors. Before you name your lawyer as executor, ask the lawyer if they are willing to do this work.

Some people think about naming Nova Scotia’s Public Trustee as executor. This happens if they have no family member or friend they feel would be able or willing to act as executor. 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.
• They can be conservative investors.
• They may not know your assets as well as a family member or friend.
• They may not know your dependentsas 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. If the executor you named in your will refuses or is unable to act, your next of kin will have to apply to the court to appoint someone else. This causes delays and could cost money. 

You should ask the person you want to name as executor if they are willing to take on the job before you name them in your will. 

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.

Can I appoint joint executors?

Yes. You can appoint more than one executor (called co-executors) to share the responsibility. 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. 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?

This is not a good idea. Often the will won’t be found or read until after the funeral. You should tell your wishes to the person who is likely to arrange the funeral or leave separate written instructions. Here is information about funeral pre-planning.

Can I change my will?

Yes. You can change your will at any time up until you die as long as you are mentally competent. 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, deaths, marriages, or divorces in the family.

There are two usual ways to change your will:

• 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 says which clauses of the will are removed or changed and gives 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.
• You can make a new 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. The first clause of a new will usually say: “I revoke all wills and testamentary dispositions of any nature and kind made by me.” The most recent will, as long as it is properly signed and witnessed, is the one that will be used following your death.

Do not change your will by marking or crossing out words in the will. It is much wiser to make a codicil or, even better, a new will.

You must be of sound mind at the time you make the changes. If you are not, 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 marry, your will is no longer valid unless it says it is made as you prepare to marry that person, 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 spouse, provide a benefit to a spouse or appointing the 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. Any new will that is properly executed cancels a previous will. A 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.

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

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 or 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. 

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 person 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 are status Indian who ordinarily lives on a reserve you can get information about doing a power of attorney from:

• Indigenous and Northern Affairs Canada (Indigenous Services Canada) online at www.aadnc-aandc.gc.ca, under ‘Benefits and Rights’, then ‘Estates’
• a lawyer who does wills and estates law, and who knows about Aboriginal law and the rules that apply to power of attorney for status Indians who live on reserve
• the Confederacy of Mainland Mi’kmaq (CMM) has a Mi’kmaw Wills and Estates series which includes:
  1. Book One: How to Write a Will 
  2. Book Two: How to Settle an Estate 
  3. Book Three: How to Write a Power of Attorney and Personal Directive
  4. Mi’kmaq Wills and Estates & Matrimonial Real Property 

Copies are located in band offices of CMM’s member bands or can be found online at cmmns.com/program/wills-estates/

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 no 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).

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 or a springing 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. 

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.

Mental competence 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 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 springing power of attorney?

A springing power of attorney is a special power of attorney document that says what event will make it “spring” 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. 

Many people have powers of attorney that are both springing and enduring. This means the power of attorney comes into effect when the donor cannot make their own decisions, and it continues until the donor can make decisions again.

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 can no longer make important decisions for yourself. For example, this can be an issue if you have progressive dementia. In this situation, you might need a medical opinion about your capacity to give a power of attorney. If you do not have capacity, a family member or other caring person might apply to court to be named as your representative decision-maker under the Adult Capacity and Decision-making Act.

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 consent to medical treatment for me?

Only if you give them the authority to do so. The Nova Scotia Personal Directives Act lets you choose a person to consent to medical treatment for you if you can no longer give consent. That person is called your delegate. 

Allowing someone to give medical consent for you is usually done in a separate document called a personal directive. If you included consent to medical treatment in a power of attorney prepared before April 1, 2010, it is still valid. 

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

If you decide to include medical consent, 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 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 representativeis 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 making a power of attorney?

• Contact a lawyer in private practice who works on wills and estates. Here are some ways to find a lawyer.
• Read “What every older Canadian should know about Powers of Attorney and Joint Bank Accounts,” a federal and provincial government publication.

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 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,  a family member or other caring person will sometimes 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 has been replaced by the Adult Capacity and Decision-making Act, which took effect on December 28, 2017.  The new law 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 unless absolutely necessary.

Who is an adult in need of representation?

An adult in need of representation is any adult who does not have the capacity to make their own decisions. Examples of when this might happen are when a person:

• is in a coma following an accident
• has an illness such as Alzheimer’s disease or a psychiatric condition that affects their mental ability
• has a mental disability that prevents them from managing their affairs
• has a mental disability as the result of accident or injury.

This section only deals with the representative decision-making for adults. It does not talk about child guardianship.  In Nova Scotia, an adult is anyone over the age of 19 (the age of majority). All adults in Nova Scotia are presumed to have capacity unless there is clear evidence to prove this is not the case.

What is capacity?

Capacity is the ability to understand information that is needed to make a decision and to understand the possible results of a decision. For example, for an adult to consent to medical treatment, they must understand the risks of either accepting or refusing treatment.

All adults are presumed to have capacity unless there is clear evidence to prove this is not the case. Adults have a right to make their own decisions. This includes the right to make decisions that friends or family might think are risky or unwise. Just because someone made a bad decision, or a decisions others might not have made, does not mean they do not have capacity to make their own decisions.

A person may have different degrees of capacity at different times. For example, an adult may have capacity to understand and agree to a simple medical procedure such as getting a flu shot, but may lack the ability to understand and make a decision about a more complex medical procedure such as a surgery. Another example is someone who has the capacity to make medical decisions, but not decisions related to managing their finances.

The way that an adult communicates does not determine whether they have capacity. An adult may need help from a translator, interpreter, family member, friend, or technology to communicate their wishes. This does not mean that they are unable to understand information or make a decision.

Who appoints a representative?

A representative for an adult is appointed by a Supreme Court of Nova Scotia judge. Before appointing a representative, a judge will hold a hearing to decide if an adult has the capacity to manage their own affairs.

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 only appoint a representative when a judge is sure that the adult needs one, and that the proposed representative:

• agrees to be appointed
• will fulfill their duties under the Adult Capacity and Decision-making Act, including acting in the best interest of the adult who needs a representative, and
• is suitable to act as the adult's representative.

To decide whether a person is suitable to be the adult's representative the judge will also consider:

• 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 court can appoint a trust company or the Public Trustee as a representative. A trust company can only deal with a person’s finances.

For more information, contact the Office of the Public Trustee.

A court can appoint more than one representative to act together (jointly) or separately. 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.

Can the Court appoint more than one representative?

A Court may appoint more than one representative to act together (jointly) or separately. 

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

Factors the court will consider to decide if a representative should be appointed

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

• the wishes of the adult
• capacity assessment report
• any other evidence about the adult's capacity
• representation plan
• any Power of Attorney made by the adult
• any Personal Directive made by the adult
• the matters with which the adult may need help
• the value and type of property the adult owns
• any other evidence the Court considers relevant.

How do I apply to be a representative?

The Nova Scotia government has a Guide to Adult Representation  that gives step-by-step information about the application process.  It is on the Nova Scotia Public Trustee website.

The legal process for appointing a representative is set out in the Adult Capacity and Decision-Making Act. A representation application takes time and is complicated and technical.  If you want to apply to be a representative, it is a good idea to talk with a lawyer, even for a short time.

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.

To be appointed as a representative, you must file an application with the Supreme Court of Nova Scotia. The forms you need are at the links below.  The forms come from 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 Brief (a letter to the court explaining why you believe the adult is in need of representation)
2. A capacity assessment report from a health professional (medical doctor, psychologist, other trained capacity assessor)
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 issued. This means that the court stamps them to show that they have been added to court records. The court will return an issued copy of the application documents to you.  The documents must then be personally served (delivered in person) to the adult and anyone else who is a respondent 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 over 19, and siblings over 19
• a guardian for the adult appointed under the old Incompetent Persons Act
• an attorney for the adult appointed by a Power of Attorney
• a delegate for the adult appointed by a Personal Directive
• if the adult lives in a care facility such as a nursing home, the director of the facility.

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).

Who can do a capacity assessment report?

A Capacity Assessment Report can be prepared by a medical doctor or registered psychologist. They can also be prepared by nurse practitioners or registered nurses, occupational therapists, and social workers, after completing specific training. This training will be developed in 2018 by the Public Trustee’s office.

What can a representative do?

A representative may only do the things described in the representation order and in the court-approved representation plan. For example, 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. The representative can only make decisions for the adult that the adult cannot make for themselves. A representative may have authority to manage finances, make health and personal care decisions for the adult in need of representation. An example of personal care decisions is which social activities an adult in need of representation will attend, or if the adult works, where and what type of work the adult will do.

A representative must:

• act in good faith
• not make secret profits
• not delegate authority to another person
• not act for their own benefit or the benefit of anyone other than the adult.

A representative must not:

• sell or give away real estate belonging to an adult in need of representation without a court order
• make or change the adult's will
• start a divorce or change parenting arrangements
• give away anything that belongs to the adult in need of representation. One exception is that representatives may give gifts to the adult’s loved ones out of the adult’s property if the court agrees
• make a decision which the representative knows or has good reason to believe the adult could make on their own.

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.

Court filing fee

It will cost $246.80 (December 2017) 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 the representative has control over.

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.

Vulnerable sector check

It costs $50 to apply for a criminal record check/vulnerable sector check from the Halifax Regional Police.  Contact your local police or RCMP detachment for information.

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 government 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.

What are some of the representative's key responsibilities?

A representative must:

• always act in the adult's best interests
• make decisions in the least restrictive and least intrusive way
• tell the adult about any decision they need to make or have made on the adult’s behalf
• encourage the adult to make decisions whenever possible
• follow the wishes of the adult whenever possible, and
• respect the adult’s beliefs and values.

A representative must keep good records of all financial matters. If the representation ends for any reason, the representative must provide those records to the court. The court may also order the representative to produce those records or report to the court at any time.

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

If a representative believes the adult’s ability to make decisions has changed the representative must have the adult’s capacity reassessed.  A representative 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.

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.

The law says all adults have the capacity to make their own decisions, unless there is clear evidence to prove 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 speak to the court, to be at the court hearing, 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.

Do I have to cooperate with an assessment?

You do not have to take part in a capacity assessment.

If you refuse to be assessed or decide to end an assessment in progress, the health professional must stop the assessment and notify the person applying for representation that you have 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 you may need a representive, the health professional can assess your ability to make decisions even without your cooperation. The assessor can use information from other sources like family and friends. The assessor can also ask for your personal health information. The assessor might need your 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 you the results and give you 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.

Representation ends when the adult who has a representative decision-maker dies or regains capacity to make their own decisions.

Representation can also end if the representative is not able to do their job because they:

• stop acting as a good representative
• have a mental or physical disability
• move out of the province permanently
• resign as representative; or
• die.

If a representative dies, becomes incapable, refuses to act, or is unable to act for any reason, a judge will appoint a new representative if the adult still needs one. If there is no alternate representative able and willing to act, 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.

What if an adult does not need a representative anymore?

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 is successful, the representative must provide financial records to the Court and return all possessions to the person who has regained capacity.

When should I ask the court to review a representation order or an older guardianship order?

Anyone who has concerns about a guardian, representative, or adult who has a representative decision-maker can apply to the Supreme Court of Nova Scotia for a review hearing. You can do this if you are an appointed guardian or representative, or an adult who has a representative decision-maker, or a family member or friend.

Some examples of reasons to ask the court for a review are:

• you have a guardian or representative appointed to make decisions for you, but you can make some or all important decisions for yourself
• you were appointed as a guardian or representative for an adult and you feel the adult can make some or all of their own decisions
• the court ordered you to return for a review after a certain length of time.

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

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

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.  If the adult has real estate 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 has appointed you as attorney in an enduring power of attorney. For more information, see the section on Powers of 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 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.

More Information

• Public Trustee
• Nova Scotia Legal Aid
• Legal Information Line, Lawyer and Mediator Referral Service - For legal information or a referral to a lawyer in private practice.

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