Being an attorney is a responsible and serious job. This information will help you understand an attorney’s legal responsibilities.
A power of attorney is a legal document that lets a capable adult give power to another adult to look after their financial and legal affairs.
The person who gives an attorney power to make decisions is called the donor.
The person receiving the power to act is called the attorney, even if they are not a lawyer.
A power of attorney only applies while the donor is alive. On death, a person’s will gives the power to an executor to look after the estate of the person who died.
This legal information talks about being an attorney under an enduring power of attorney. An enduring power of attorney is one that continues, or ‘endures’, after the document is signed, whether or not the donor loses capacity. The donor must have the legal capacity at the time they sign the document. The power of attorney document must clearly say that the attorney’s authority continues after the donor lacks capacity. For example, it may say something like the following
This enduring power of attorney becomes effective immediately and may be exercised during any period of legal incapacity I may suffer. It is an enduring power of attorney within the meaning of the Powers of Attorney Act.
A power of attorney does not usually cover decisions about personal care or health care. Another legal document called a personal directive covers personal care decisions such as medical treatment, where the maker of the personal directive will live, or who visits them. A personal directive allows a capable adult to name someone (a delegate) to help make these kinds of decisions for them, and to give instructions to the delegate. You can learn more about a personal directive at www.legalinfo.org/wills-and-estates-law/health-care.
Getting more information or legal advice
If you need legal advice or to talk to a lawyer about an attorney’s role and responsibilities, it is a good idea to speak with a lawyer who focuses their work on estate planning, including powers of attorney, and if possible a lawyer who has a Trust and Estate Practitioner or “TEP” designation. Here is information about ways to find a lawyer.
Who can be an attorney?
To be an attorney in Nova Scotia you must:
- be at least 19 years old
- be able to understand your legal responsibilities
- be trustworthy, and
- be willing and able to take on the role
You do not have to live in the same province as the donor, though it is easier if you do. When you are an attorney you cannot take any personal benefit from the donor’s assets (estate) unless the power of attorney document specifically says you can.
If you are appointed as an attorney you cannot witness the document and neither can your spouse.
Are you ready to be an attorney?
Being an attorney is a serious responsibility. As an attorney you are called a fiduciary and must act with good faith and honesty. Being a fiduciary means you must make decisions only for the donor’s benefit, not for your own interests and needs, or those of others. You must fulfill your legal responsibilities to the donor, and manage potential problems that may come up, such as conflicts with others who may not agree with your decisions. See ‘What general legal duties do I have’ for more about what it means to be a fiduciary.
Here are a few things to consider in deciding whether to take on the role:
1. Will you be able to keep organized and keep track of all the funds spent for the donor's benefit? You must give an accounting when your role ends.
2. Will acting as attorney put you in situations where your personal interests conflict with your duties as attorney?
3. Does the document authorize a fee for you to be paid for the work? There is no defined fee given by Nova Scotia law. An attorney is only entitled to be paid for their work as attorney if the document clearly says that, or if the court orders it. You are entitled to use the donor’s funds for the expenses of doing the work, and to be reimbursed if you spend any of your own money to help the donor.
4. Here are some more factors to consider before you decide:
- The value and nature of the donor’s property.
- How organized their affairs and papers are.
- How comfortable you are managing property and finances.
- Views of family members and concerned friends, and the potential for disagreement with, or among, them.
- The potential for disagreement with any other attorneys.
- The potential for disagreement with anyone who has authority to make personal care decisions on the donor's behalf.
- What is happening in your own life? Do you have the time, ability, and interest to manage someone else’s financial affairs?
- How long the role might likely last. How old is the donor and what is their state of health?
Can I say no if someone asks me to be their attorney?
Yes, you can say no even if you are named in the document as the attorney. Being an attorney may involve a significant amount of work. Be sure that you have the time and ability to do the work. If you are surprised by a power of attorney appointment and do not wish to act, you can say no. Once you accept the role, you should not resign unless you have no choice such as becoming ill or for some other serious reason. See 'Can I stop being an attorney' for more information.
When can people make decisions for themselves?
A person can make decisions for themselves when they have capacity. Capacity is the ability to do or understand something. In decision-making, capacity means the person can understand:
● the information needed to make a decision, and
● what could happen because of making or not making a decision.
The law says all adults (age 19 or over in Nova Scotia) have capacity to make their own decisions unless there is clear evidence to prove they do not. Adults have a right to make their own decisions. This includes the right to make decisions that friends or family might think are risky or unwise. Just because someone made a bad decision, or a decision others might disagree with, does not mean they do not have capacity to make their own decisions.
A person can have different capacity at different times. For example, an adult may have capacity to understand and agree to a simple medical procedure but may not be able to understand and make decisions about complex property, financial management and investment decisions.
A person might not have capacity because they are sick or weak and not able to think clearly. They may also be not mentally capable if they have a disease, like Alzheimer’s, that affects their ability to think and remember. Many people who are sick or who have Alzheimer’s disease can still make some decisions for themselves. People can also become mentally capable again after losing capacity. For example, someone with a long-term illness could start taking medication that improves their cognitive abilities.
The way an adult communicates does not tell people whether they have capacity. An adult may need help from a translator, interpreter, family member, friend, or technology to tell people about their wishes. This does not mean that they cannot understand information or make decisions.
Who decides whether a person has capacity to manage their own property?
Depending on the type of power of attorney, the document may say who can assess capacity. Or, the document may be effective from the date it is signed without any capacity assessment. See 'When do I start to act or make decisions for the donor?' for more information.
In some cases a formal capacity assessment may be needed, done by an approved health professional including a medical doctor or registered psychologist. Some nurse practitioners or registered nurses, occupational therapists, and social workers may also be authorized to do capacity assessments if they have completed specific training developed by the Nova Scotia Public Trustee’s Office.
If a person has not already done an enduring power of attorney and they become incapable of managing their own affairs, their capacity may be assessed under the Adult Capacity and Decision-Making Act, and someone may need to apply to court to be appointed as the person's representative to help them make decisions. Go to the page on Adult Representation for information about the Adult Capacity and Decision-making Act.
When do I start to act or make decisions for the donor?
As long as they have capacity the donor can still make decisions and manage their own finances and property, and can also revoke (cancel) the power of attorney if they wish.
Read the enduring power of attorney document to find out when it takes effect. It might start right away. Or it might start only if some “triggering event” happens — for example, when a capacity assessor determines that the donor can no longer make their own financial and property decisions.
Most enduring powers of attorney in Nova Scotia take effect right away on signing, but may not need to be used right away. You may not need to take any steps on the donor’s behalf unless the donor asks you to, or until the donor needs you to act because the donor has become incapable of managing their own affairs. If the document takes effect right away when it is signed, generally no capacity assessment would be required in order for you to act.
Some enduring powers of attorney come into effect only when a professionally qualified capacity assessor determines the donor is no longer capable of managing their own finances and property. These are rarer as in some cases it is difficult for a capacity assessor to confirm complete incapacity. If a formal capacity assessment is needed, it may be done by an approved health professional including a medical doctor or registered psychologist. Some nurse practitioners or registered nurses, occupational therapists, and social workers may also be authorized to do capacity assessments if they have completed specific training developed by the Nova Scotia Public Trustee’s Office.
To sum up, with an enduring power of attorney your power may start right away and then continue, or ‘endure’, even if the donor becomes mentally incapable. Or your power may start only if the donor becomes mentally incapable. To be an enduring power of attorney, the document must clearly say that your authority continues after the donor loses capacity. If it does not say that, your power ends if the donor becomes mentally incapable.
What are my first steps when I start to act as power of attorney?
1. Review the power of attorney document
- When does it come into effect?
- What you are being asked to do?
- What limits are put on your authority?
- Are there any other attorneys?
- Are you to be paid for your work or only reimbursed for out of pocket expenses?
2. Learn about your legal duties
- You have a duty to take good care and always act in the donor’s best interests. This means you must not make decisions for your own benefit. (see ‘What general duties do I have’)
- You must keep good records and must always be ready to account for what you have done on the donor’s behalf (see ‘You must keep a record of your work as an attorney’)
3. Talk with the donor about the power of attorney, including:
- How to support the donor in decision-making
- Expectations about communication between you and the donor
- Any questions you have for the donor
- The donor’s values, wishes, and beliefs, attitudes about money and their financial goals, to help guide you in decision-making on the donor’s behalf
4. Give notarized copies of the power of attorney to banks, businesses, or others who need to rely on it
5. Make a list of the donor’s assets and debts
See ‘What information should I know as power of attorney?’
6. Make a budget for the donor’s income and expenses
- Set up a system to keep records (see ‘You must keep a record of your work as an attorney’)
- Track the expenses and income of the donor’s estate in chronological order to be prepared for the final accounting at the end of your role
- Keep receipts for every expense
- It is a good idea to create separate folders for different areas of paperwork (a folder for employment history, list of bank accounts and bank statements, income tax returns, insurance papers, etc.)
What general legal duties do I have as an attorney?
As an attorney you are a fiduciary, which means a person who has been trusted with property or power for the benefit of someone else. As a fiduciary, you have legal duties or obligations that limit how you must carry out your powers on the donor’s behalf.
You have a legal duty to:
- take good care as you make decisions using the power the donor gave you
- stay within the power you have been given
- use reasonable care and skill
- only act in the donor’s best interests
- not give or delegate the authority you have been given to someone else unless the power of attorney document clearly says you can
- avoid conflicts of interest
- not profit or benefit personally from what you do for the attorney or from the donor’s property. Note however that the power of attorney document may say if you are to be compensated for helping the donor, and how you may be reimbursed for out-of-pocket expenses
You must give priority to the donor’s needs - making sure that they are safe and comfortable. Put their wellbeing above saving money for others who may inherit their money. Remember, it is the donor’s money and property and must be used for the donor’s benefit and in their best interests, even if you or others expect or hope to inherit the money and property when the donor dies.
Involve the donor in decision-making whenever possible. Ask the donor what they want. If they do not have capacity to make their own decision, be guided by what you know of the donor’s values, wishes, beliefs, attitudes about money and past actions.
You must keep a record of your work as an attorney
Keep current, detailed and accurate records of what you do as an attorney. This is a legal duty. In certain situations, you may be asked to provide a complete record of all transactions you made for the donor. Or after the donor dies the Executor of the estate may require you to provide these records. This is calling providing an ‘accounting’, or 'passing of accounts'.
Your legal duty to give an accounting is serious. It is a very serious matter to look after someone else's money and property. You should always be ready to explain and account for what you do on the donor's behalf.
You should keep:
- all bank records (monthly statements, withdrawals and deposit slips for all transactions, online records)
- all income tax information (notices of assessments, T4 and T5 slips, other supporting documents)
- all receipts for purchases you make such as parking, taxis, and, if applicable, any payments made to yourself
- all invoices received and paid on the donor’s behalf
- other important correspondence (examples are leases, notices from landlords and employers, insurance information).
You must keep your bank accounts separate from the donor’s bank account(s). Never mix your accounts or property with the donor’s unless that was already done before the donor lost capacity.
What powers do I have?
You have the authority to make any decisions about financial and property matters that the donor could legally make, subject to any conditions or limits stated in the power of attorney document.
You should look at the power of attorney document to find out what you are being asked to do and how much power you have.
Your power might be limited to a single decision or task, or it might be very broad.
The donor may have put some limits on your powers and may have listed some specific things that you cannot do, or that you must do on their behalf.
In addition, there are always some things you cannot do as attorney.
- Make a will for the donor or change or cancel the donor’s will
- Make a new power of attorney for the donor
- Change a beneficiary designation on the donor’s assets
- Give your authority to someone else unless the document or court allows this
- Give or receive gifts or loans using the donor’s money unless the document says you can
- Vote in an election on the donor’s behalf
- Make an affidavit on the donor’s behalf.
Do not gift the donor’s money to yourself or others
You can make a gift from the donor’s property only if the power of attorney documents says you can. Still, be very careful.
Any gifts should follow what the enduring power of attorney document says. For example, the donor may have made regular gifts to a preferred charity or to family members on special occasions. As attorney you can continue this as long as the document says you can, and as long as the donor will have enough money left to meet their personal care and health care needs, those of their dependents, as well as satisfy any other legal obligations the donor may have.
You are liable if you misuse the power of attorney
The court may remove you from your role if you misuse your power of attorney. You may also face serious legal consequences if you use the donor’s property or money for your own benefit or the benefit of someone other than the donor.
It is a criminal offence to misuse a power of attorney.
Depending on the situation, you could potentially be charged with other crimes, such as fraud or theft. You could be sued for financial losses of the donor, charged with a criminal offence, or both.
If you are not sure what powers you have, it is a good idea to review the document with a lawyer.
Common responsibilities of an attorney
The work you do as power of attorney will depend on the powers included in the power of attorney document.
Common responsibilities include:
- Paying bills
- Depositing money into accounts
- Investing money
- Preparing and submitting tax returns
- Buying and selling land
- Using the donor’s assets to support and care for the donor and the donor’s dependents
- Making gifts or loans at the donor’s request
- Keeping good records of all transactions done on the donor's behalf.
What documents and information do I need as attorney?
When you start acting as an attorney under a power of attorney document you must find the original signed document. It is a good idea to get some notarized (true) copies of the power of attorney document. You will need to have the notarized copies for banks and others who will need to rely on the document. Do not give away the original. Anyone who needs it can be offered a notarized copy. If you cannot find the original try to find the lawyer who drafted the original to find out if the lawyer knows where the original is stored or whether the lawyer can provide a notarized copy.
When you start acting as the power of attorney, you will need information about the donor’s affairs, including:
Information about the donor’s assets and debts, including any:
- Real property (for example, a home, cottage, investment properties)
- Property held in trust for the donor
- Personal and household items (for example, furniture, vehicles, jewellery)
- Liquid assets (cash, bank accounts, stocks)
- Regular bill payments (monthly leases, electricity, heat, phone bill, credit cards, magazine subscriptions, internet)
- Business assets and debts
- Debts owed to the donor
- Employment, insurance, pension, or other benefits the donor receives
- Other financial responsibilities (for example, spousal or child support)
- Names and contact information for banks and other parties you will have to notify as power of attorney
- Names and contact information for anyone else who is an attorney or delegate or representative for the adult. A delegate is a person appointed in a personal directive for health care decisions on the adult’s behalf. A representative is a person appointed in a court order to make decisions on the adult’s behalf.
- You may need to work with the delegate or representative at times. For example, if the donor needs to move to a care facility, this will involve both medical and financial decision-making.
- Details about the donor’s financial wishes, especially any wishes that may lead to conflict with others
- How often and in what format the donor wants to review your activities as attorney (provide an accounting). The power of attorney document may talk about this.
Dealing with the donor’s bank
You can access the donor’s bank account if the donor gave that authority in the power of attorney document. The bank may need their legal department to review the document before they will allow you to act. The bank will need you to fill out their forms and will need your signature for their files. You may need to show the bank the original or provide a notarized copy of the power of attorney document. The forms you fill out at a particular bank can only be used for that bank.
Filing the donor’s income tax return
You must file the donor’s income taxes, as long as the donor included a clause in the power of attorney document that allows you to deal with the Canada Revenue Agency on the donor’s behalf.
Dealing with the donor’s real property
You may have the power to sell, lease or mortgage, and generally manage the real property (land) of the donor if you are given that authority in the power of attorney document. The power of attorney must be recorded at the Land Registration Office in the County or District where the property is located. The power of attorney must be signed under seal and have an Affidavit of Execution attached. An Affidavit of Execution is a sworn statement by a witness confirming that they saw the donor sign the power of attorney. The power of attorney document will usually note the marital status of the donor. If the donor is married or in a registered domestic partnership, be aware of spousal rights.
Can the donor have more than one attorney?
Yes, the donor can choose more than one attorney. When this happens they are co-attorneys and must work together and make unanimous decisions. Problems can arise when the document allows the attorneys to work together or on their own. Be careful not to accept such a role unless you are sure you can work with the other named attorney. Even if attorneys are acting on their own, each attorney should make sure that everyone is acting in the best interest of the donor.
The power of attorney may appoint one attorney for certain tasks and another attorney for other tasks.
If there are multiple attorneys working together and one of them becomes unable or unwilling to continue acting (due to resignation, death, illness), the remaining attorney(s) can continue acting as attorneys.
Can I ask others to help me in my role as attorney?
You are ultimately responsible for all decisions, but you can ask for help from a lawyer, accountant, investment adviser, or other professionals. It may be helpful to talk to real estate agent when dealing with land, or an appraiser when assessing the value of certain assets. Most power of attorney documents give you the power to pay for the reasonable cost of hiring these professionals with the donor’s finances.
How can I manage conflict with other people involved?
Depending on what you are required to do as power of attorney, you may be dealing with the donor’s loved ones or caregivers for a period of time. Everyone may have different ideas about what is in the donor’s best interests. To help avoid conflict, you may want to keep them informed about any big decisions you make and explain why you are making these decisions. Showing them respect and considering their opinions may help them feel included, even though you are the ultimate decision-maker.
Can I make personal care decisions for the donor?
You can only make personal care decisions (which includes health care decisions) for the donor if they have given you authority to do so in the document. Allowing someone to make personal care decisions is usually done in a separate document called a personal directive that names a delegate (person appointed to make personal care decisions on the behalf of the person who made the directive).
A donor is allowed to include the right to make personal care decisions in the power of attorney document. This may happen when the attorney (financial matters) and delegate (personal care matters) are the same person acting in dual roles. If the right to make personal care decisions is in the power of attorney document it must be in writing, signed by the donor, and witnessed. The witness cannot be the delegate or the delegate’s spouse. The donor and delegate must be at least 19 years old and mentally competent.
Sometimes a clause in a power of attorney document will say that the attorney can give medical consent based on an older Nova Scotia law called the Medical Consent Act. That law is no longer in effect. Get legal advice if the only document covering health care decisions refers to this older law. It may not be effective.
Do I sign my own name when acting as attorney?
Yes, sign your own name on documents even though you are acting on the donor’s behalf. You should include that you are acting as power of attorney when you sign documents on the donor’s behalf.
Two examples of how to sign are below:
Signed: John Smith, duly appointed attorney for Jane Smith, or
Signed: John Smith (power of attorney for Jane Smith)
Can the donor revoke my power of attorney?
Yes, the donor can revoke the power of attorney at any time as long as they have mental capacity to revoke it. This means they understand what it means to revoke the power of attorney. If the donor revokes your power of attorney and you think they did not have capacity, or that there was fraud or abuse involved, it is a good idea to contact a lawyer. You can apply to court to review the matter.
When does my power of attorney end?
Your power of attorney ends when:
- The donor notifies you that they are ending the power of attorney. This is called revoking the power of attorney
- The donor becomes mentally incompetent, unless you have enduring power of attorney
- The donor dies
- The donor becomes bankrupt
- A court orders it to end
- You properly notify the donor that you no longer wish to be the attorney
- You become mentally incompetent
- You die
- You become bankrupt and are not able to carry out your duties due to bankruptcy
- You are convicted of a crime in which the donor is a victim
- The task or length of time the power of attorney was created for is done or ends.
If your legal power as attorney ends, stop acting on the donor’s behalf right away. Notify any bank, business or others you dealt with as attorney that your authority has ended. Even if it is easy to continue some tasks, like paying the adult’s bills - do not do it.
Can I stop being an attorney?
Yes, you can stop being power of attorney if you become unable to continue acting as the attorney after you start. You must give the donor notice that you are resigning. The power of attorney document may name an alternate (back-up) attorney to act if you become unable or unwilling to act. If so, find out if the alternate attorney is willing to take over the role. The document may say what steps the alternate attorney needs to take to become recognized as the new attorney.
If the donor no longer has mental capacity and you have enduring power of attorney, and there is no other attorney (co-attorney or alternate attorney) listed in the power of attorney document to take on the role, you can apply to court to ask the court to appoint someone else to manage the donor’s affairs. You will likely be required to file an accounting with the court of all money spent on the donor's behalf before you are released from your duties. That is why you must keep good records.
It is best to get legal advice on how to properly resign and be released.
Last reviewed: September 2021
Reviewed for legal accuracy by: Lawyers Erin O'Brien-Edmonds QC TEP and Catherine Watson Coles QC TEP
Thank you to Justice Canada for funding to support development of this legal information content. Thank you to other members of the Public Legal Education Association of Canada for permission to adapt member content.