By writing a power of attorney, you can give another adult authority to take care of your finances and property matters for you.
You can find information in our Power of Attorney information booklet, which answers important questions such as “Do I need a power of attorney if I have a will?” Or “What are ways to prevent misuse of a power of attorney?” Our information booklet provides invaluable information. You can find the booklet, in PDF format here.
This page gives legal information about Nova Scotia's Powers of Attorney Act, including changes to that law that came into effect on July 5 2022. It explains the law in a general way. It is not legal advice.
WHAT IS A POWER OF ATTORNEY AND WHY YOU NEED ONE
What is a power of attorney?
A power of attorney is a legal document that lets you give someone you trust power to look after your finances and property for you. This could include the power to manage your land, house, bank accounts, investments, vehicles and anything else you own, paying your bills, filing your tax returns, cashing your cheques, and making other legal or financial decisions.
Giving someone power of attorney doesn’t limit you from making your own decisions —you still have control of your financial affairs and are free to deal with your property, money and investments, as long as you have capacity to make those decisions.
If you give someone the power to take care of your financial and property matters, you are called the donor. The person you give this power to is called the attorney, even if they aren’t a lawyer. You can name one attorney, or more than one attorney.
A power of attorney is for financial and property matters only. A personal directive is for health and other personal care decisions. See the page on Health and Other Personal Care decisions for information about personal directives.
Why would I need a power of attorney?
Power of attorney is a way for you to plan ahead and choose someone you trust who will act for you and deal with your finances and property if you can’t act for yourself, or if you just need someone to help you with your finances for a short time.
Here are some reasons to make a power of attorney:
- You do not feel able or are too sick to manage your financial affairs and you need someone to take over for you until you get better.
- You can’t get around very well and you want someone to help with banking such as depositing or withdrawing money from your bank account.
- You are travelling or working away from home and you want to allow someone to manage your property and/or financial affairs while you are away.
- You have an illness that may reduce your ability to make decisions or to move around in the future, and you want to plan ahead for that.
- You want to make arrangements now while you are well and capable, to prepare for the unexpected. Capable means able to understand decisions about your property and financial affairs and able to make important decisions about these things. If something like an accident should happen which limits your ability to manage your finances and property or to get around, the power of attorney can be used to help you with decisions about your property and finances.
- If you do not make an enduring power of attorney and you become incapable to take care of your finances and property, someone may need to apply to court to ask to be named as your representative to handle your finances and property. This is a court process under a law called the Adult Capacity and Decision-Making Act. The process is expensive and takes time. The representative might not be the person or people that you would have chosen to take care of your affairs. The court would decide what powers your representative would have and what decisions they could make on your behalf. A power of attorney is more cost effective than a court order, and you can choose who you want to take care of your finances and property, and what powers they will have.
Powers of attorney for persons registered under the Indian Act who ordinarily live on reserve
The federal Indian Act has rules for making powers of attorney that apply to persons registered under the Indian Act who ordinarily live 'on reserve'. The Indian Act does not apply if you have status under the Indian Act and live off-reserve, or if you do not have status under the Indian Act and live on-reserve. Provincial laws apply instead.
If you have status under the Indian Act and ordinarily live on a reserve, you can get information about powers of attorney from:
- Indigenous Services Canada online canada.ca/en/indigenous-services-canada.html, under ‘Treaty annuities, estates and trusts’, then 'Estate Services for First Nations'
- the Confederacy of Mainland Mi’kmaq (CMM) has a Mi’kmaw Wills and Estates series which includes:
- Book One: How to Write a Will
- Book Two: How to Settle an Estate
- Book Three: How to Write a Power of Attorney and Personal Directive
- Mi’kmaq Wills and Estates & Matrimonial Real Property
Go to cmmns.com/program/wills-estates/ for more information.
- a lawyer who works in the area of wills and estates law, and who knows about Aboriginal law and the rules that apply to power of attorney for persons registered under the Indian Act who ordinarily live on reserve or on Crown lands.
Do I need power of attorney if I have a will?
Yes. A power of attorney is different from a will. Power of attorney only applies while you are alive. A will applies only after you die—it says what happens to your money and things after you die, and gives your executor authority to look after your estate. Even if your estate is small there are final matters to deal with when you die, such as filing final tax returns, paying final bills, and closing your bank accounts. See the page on Making a Will for more information.
Does power of attorney cover health and other personal care decisions?
Power of attorney does not usually tell others how to make health or other personal care decisions for you if you cannot make them yourself.
Health and other personal care decisions are usually covered in a separate legal document called a personal directive that allows you to give someone you trust authority to make health or other personal care decisions for you if you cannot make those decisions yourself. A personal directive covers personal care decisions such as medical treatment, where you want to live, activities that are important to you, and who you want to visit you. A personal directive allows you to name someone called a delegate to help make these types of decisions for you. You may also give instructions for the delegate to follow when they make personal care decisions. Go here to learn about personal directives.
What is an enduring power of attorney?
An enduring power of attorney is a type of power of attorney. With an enduring power of attorney your attorney's power continues, or endures, after you can no longer make your own property and financial decisions. This is called losing capacity. An enduring power of attorney document must clearly state that the attorney's authority continues after the donor loses capacity. If it does not state that, the attorney's power ends if you lose capacity. For example, an enduring power of attorney may say something like the following:
This enduring power of attorney becomes effective immediately and may be exercised during any period of legal incapacity I may suffer. It is an enduring power of attorney within the meaning of the Powers of Attorney Act.
An enduring power of attorney makes sure your attorney can act and make decisions if you lose capacity to manage your property and finances. It is the most common type of power of attorney in Nova Scotia, because it allows you to plan for the future. It gives you peace of mind knowing that you have appointed someone you trust to manage your finances and property if you cannot.
When does an enduring power of attorney take effect?
You can choose when your enduring power of attorney takes effect. In other words, you say in your power of attorney when your attorney is allowed to start acting for you.
You have two choices:
1) Takes effect as soon as it is signed and witnessed
Your attorney's power may take effect right away on the date your enduring power of attorney is signed and witnessed, and your attorney can start acting any time after that. Your attorney will be able to continue to act if you are no longer capable of managing your property and finances.
Most enduring powers of attorney in Nova Scotia take effect right away, but may not be used right away. Your attorney may not need to act for you unless you ask them to, or until you lose capacity to managing your own affairs. If the document takes effect right away when it is signed, generally no capacity assessment would be needed in order for your attorney to start to act. Your attorney would not have to go through a formal process to prove to third parties, such as banks, that the power of attorney has come into effect. That makes it even more important to choose someone you trust to be your attorney.
If you are not comfortable allowing your attorney to determine when to start using the power of attorney to help you, there are ways to add more protection:
- you can ask if your lawyer will keep the original document for you (called ‘holding it in trust’) and only release it when it is clear that it is necessary, or
- you can keep the original enduring power of attorney in a safe place, tell your attorney where it is, but only allow the attorney to access it when it is needed.
Talk with a lawyer about other ways to prevent abuse of your power of attorney, and see 'Monitors and other ways to prevent misuse of power of attorney' below.
2) Takes effect only if you lose capacity
Some enduring powers of attorney come into effect only when the donor is no longer capable of managing their own finances and property. This type of power of attorney is called a “springing” power of attorney because it springs into effect only when there is proof the donor has lost capacity. In that case your attorney's power would start only if you lose capacity. These are much less common, as in some cases it is difficult for a capacity assessor to confirm that the donor is completely incapable of making their own property and financial decisions. It is best to see a lawyer if you want to do this type of springing enduring power of attorney.
You can state in your power of attorney who you want to assess your capacity to make property and financial decisions. Usually you would choose a professionally qualified capacity assessor, but you can name anyone else you wish, including your attorney.
If your power of attorney does not say who you want to do the capacity assessment or if that person cannot do it, a formal capacity assessment may be done by an approved health professional, including a medical doctor or registered psychologist. Some nurse practitioners or registered nurses, occupational therapists, and social workers may also do capacity assessments if they have completed specific training developed by the Nova Scotia Public Trustee’s Office.
What is a springing or contingent power of attorney?
Unless the power of attorney says differently, a power of attorney comes into effect as soon as it is signed and witnessed. Your attorney can start acting at any time after that.
However, a springing power of attorney is a special power of attorney document that says the triggering event that will make it come into effect. For example, the triggering event could be if the donor loses capacity to make their own property and financial decisions. Another example is if a business owner needs someone else to run their business for a short time because they are going to be travelling or in hospital.
Springing powers of attorney are also sometimes called a contingent power of attorney because they only take effect when a particular triggering contingency (event) happens.
Springing or contingent powers of attorney are much less common than powers of attorney that come into effect as soon as they are signed. It is best to get legal advice from an estate planning lawyer if you want the type of power of attorney that comes into effect only when some triggering event happens.
What happens if I lose capacity and I don't have an enduring power of attorney?
If you do not have an enduring power of attorney and you lose capacity to take care of your finances and property, someone may need to apply to court to ask to be named as your representative to handle your affairs under a law called the Adult Capacity and Decision-Making Act. The court process is expensive and takes time. The person or people who apply to court to be your representative might not be who you would have chosen to take care of your affairs. The court would decide what powers your representative would get and what types of decisions they could make on your behalf.
If no one you know is able and willing to act as a representative, the Nova Scotia Public Trustee may step in to manage your financial affairs. Go to the Public Trustee website at novascotia.ca/just/pto for more information.
You can get more information about adult representation on the Nova Scotia Public Trustee’s website under “Adult Capacity and Decision-making Act”, or go to the Legal Information Society of Nova Scotia's page on Adult Representation.
Should I have an ordinary power of attorney or an enduring one?
The kind of power of attorney document you have depends on your needs. Every situation is different, so you should speak with a lawyer about what is best for you.
An ordinary power of attorney gives someone authority to take specific action for you at specific times. For example, people in the military may allow someone to handle their banking while they work outside of Canada.
Enduring powers of attorney are much more common as they allow you to plan for the future and have someone you trust to act for you when you cannot act for yourself.
If you want the person named in your power of attorney to be able to act if you lose capacity, then you will need an enduring power of attorney.
If you already have an ordinary power of attorney, talk with your lawyer about whether you should replace it with an enduring power of attorney.
MAKING A POWER OF ATTORNEY
Who can make a power of attorney?
You can make a power of attorney if:
- you are age 19 or older (an adult), and
- you are capable of understanding the nature and effects of making a power of attorney.
The law says all adults are capable of making a power of attorney, unless there is clear evidence to show they are not.
You are capable of making a power of attorney if you understand and appreciate all of the following:
- What property you own and the value. You must also have a basic idea of what things are valuable and what things are not.
- Your legal obligations to people who depend on you for financial support—your dependants. Examples are your spouse and any children under 19.
- That your attorney will be able to do almost everything that you can do with your property and finances, unless you say something different in your power of attorney document to limit their power.
- That if your attorney does not do a good job your property could lose value. You might lose money.
- That your attorney could abuse the powers you give them. Your attorney might not do what is best for you.
- That you can cancel (revoke) your power of attorney at any time if you are able to understand what it means to do that. If you have lost capacity you cannot revoke the power of attorney.
You must understand all of the above six things at the time when you sign the power of attorney document.
Sometimes a person may need help to communicate and explain their wishes. The way you communicate does not tell people whether you are capable. You may need support or help from a family member, friend, translator, interpreter, or technology to tell people about your wishes. Communicating in different ways does not mean that you cannot understand what it means to make a power of attorney.
You should make your power of attorney while you are in good health so that no one questions whether you had capacity to make one. Whether you are capable of making a power of attorney can be questioned:
- if your ability to think clearly is affected by illness (including dementia or Alzheimer’s), pain, or drugs (prescription or otherwise)
- if you feel threatened or pressured to write a power of attorney by someone who may be trying to force you to make one. Power of attorney must be made without pressure or influence by anyone, including people you might rely on to help you financially, for housing, or for personal needs and health care.
This is not a complete list. But it gives you an idea about the types of challenges that may be made to the validity of a power of attorney. And, more than one of these issues may apply to any situation.
Even if you have some trouble understanding information or lack some decision-making ability, you might still be able to make a power of attorney under the right circumstances and with the information explained in a way that you are able to understand. A health problem that affects your thinking may matter, but it is not the only issue that matters. For example, someone in the early stages of Alzheimer's who has a bit of trouble with thinking and reasoning might still be capable of making a power of attorney. Whether you are capable of making a power of attorney is a legal question, not a medical one. But if you have a medical issue that affects your ability to think clearly, you should get help from a lawyer who does estate planning and who has experience working with people who have some decision-making, reasoning or memory problems. The lawyer may require input from your doctor or a capacity assessor to determine if you have capacity to make a power of attorney before going ahead. Don't be offended if this happens. It is better to have a capacity assessment to make sure the document you make is valid and won't be challenged.
It is also very important to get help from a lawyer if you feel pressured or threatened by someone who may be insisting that you do one.
If you make a power of attorney and it is not clear if you were capable when you signed it, people might refuse to let your attorney act or make decisions for you. Also, somebody could challenge your power of attorney in court.
Other legal requirements to make a valid power of attorney
Your power of attorney must:
- be in writing
- be dated
- be witnessed by two independent adults
- be signed by you and your two witnesses at the same time
Remember—you must be a capable adult at the time you sign the document.
In writing: Your power of attorney must be a written document. A video or audio power of attorney is not valid.
Signed and Dated: You, the donor, must sign your power of attorney. It must also be dated.
If you are able to read the power of attorney document but cannot sign your name on it because of a physical disability for example, you may sign by making your mark, like an “X" or other symbol, on the signature line. A witness should sign a sworn statement saying that you made the mark in the presence of the two witnesses. The statement should be attached to your power of attorney. This statement is called an affidavit of execution.
If you can read the power of attorney but cannot sign your name or make your mark, someone else may sign the power of attorney for you. In that case the person who signs:
- must be at least 19 years old
- must be with you when they sign the document on your behalf. You must direct them to sign for you
- cannot be your attorney
- cannot be your attorney's spouse, registered domestic partner, or common-law partner
- cannot be your attorney's child.
If you cannot read the document someone must read the whole document out loud to you and your witnesses before you and your witnesses sign it or before you make your mark. A witness must sign an affidavit of execution saying that someone read the document to you and that you understood it before you signed it or made your mark on it.
Witnessed: A power of attorney must be witnessed and signed by two people who are at least 19 years old.
Your witnesses cannot be:
- your attorney
- your attorney's spouse, registered domestic partner, or common-law partner
- your attorney's child.
Your witnesses must both be with you when you sign the document and must then also sign the document in front of you. Your witnesses do not need to know what is in your power of attorney.
Other things that are a good idea to do:
The following are not legal requirements but are a good idea:
- Number each page. This helps make sure pages are not replaced or removed.
- Initial each page. Both you and your witnesses should do this.
- Affidavit of Execution. Have one of your witnesses swear an affidavit of execution.
What is an affidavit of execution?
An affidavit of execution is a sworn witness statement confirming that they saw you sign the power of attorney (or that another person signed on your behalf if you were unable to sign), and that you were at least 19 years old (an adult) when you made the power of attorney. The witness signs the affidavit of execution in front of a Commissioner of Oaths or a notary public.
An affidavit of execution can be made any time after you sign your power of attorney. It is best to do it right after the power of attorney is signed.
A Commissioner of Oaths or a notary public must confirm that the affidavit of execution is true. All lawyers are Commissioners of Oaths. You can also find Notaries Public and Commissioners of Oaths in the Yellow Pages, or go here for for ways to find one.
People often do an affidavit of execution for a power of attorney, even though the law does not say you must do one for the power of attorney to be used in all situations. But for example if you want your attorney to buy or sell land for you the Land Registration Office will need an affidavit of execution.
Does the attorney have to sign the document?
No. The attorney does not have to sign the power of attorney. But when the attorney is using the power of attorney they will have to sign documents at each bank, trust company, and credit union where you have an account that the attorney will use. Each institution will also have its own forms for you or your attorney to fill out. You will usually need a special form from your bank if you want your attorney to access your bank account(s). Contact your bank to find out what they need.
Note: When the attorney is acting for you and signs documents on your behalf they sign their own name, not your name. The attorney should include that they are acting as power of attorney.
Two examples of how an attorney would sign on your behalf are below:
Signed: John Smith, duly appointed attorney for Jane Smith, or
Signed: John Smith (power of attorney for Jane Smith).
Do I need a lawyer to write a power of attorney?
The law does not say that a lawyer must write your power of attorney. But it is wise to at least speak to a lawyer about it. You can write your power of attorney yourself. You can fill in a blank form; you can buy one from a store; or you may find one online. Check to make sure any form you use follows the requirements of Nova Scotia's powers of attorney legislation.
A power of attorney is an important legal document and it must be worded carefully to make sure that it says what you want. If a lawyer makes a mistake, the lawyer's liability insurance may cover the situation.
Among other things a lawyer can:
- make sure the power of attorney is clear about how much authority you give to your attorney,
- make sure that your power of attorney covers all the steps needed to do what you want done,
- make sure the power of attorney meets all the legal requirements,
- inform you about the best clauses to provide for unexpected events,
- inform you about options for wording the power of attorney,
- inform you about steps you can take now to make it easier for your attorney to deal with your affairs later,
- inform you about steps you can take to help prevent misuse of your power of attorney,
- answer any questions you might have,
- help you understand better how power of attorney works when you lose capacity and what the attorney will be doing for you,
- provide proof that you had legal capacity when you made your power of attorney,
- provide proof that you made your power of attorney by your own free choice, and free of undue influence
- act as one of your witnesses when you sign your power of attorney
- in some cases, keep your power of attorney for you and release it only when you need your attorney to act for you.
If you decide to write your own power of attorney, ask a lawyer to look it over. Ask them to make sure that it meets all the legal requirements and allows your attorney to do what you want.
Always get a lawyer's help:
- if you do not understand the information you need to make a power of attorney
- if you cannot identify and weigh your options and understand the effect your choices may have
- if you have a health problem that affects your thinking, reasoning, decision-making or memory
- if you feel pressured to do a power of attorney because someone is insisting that you do one
- if you want a specific power of attorney for a limited purpose such as to sign a deed to your home. There is no standard form for a specific power of attorney because the wording will depend on what powers you want to give your attorney. The document must be written carefully to meet your needs
- if you want to give the attorney a fee for doing the work, especially when the attorney is not a family member.
How much will it cost?
A power of attorney form from an office supply store costs a few dollars, or you may be able to find one online. Banks do not charge a separate fee for their power of attorney forms.
The cost for lawyers’ fees will depend on your needs, how long it takes to draft the power of attorney, and the number of times the lawyer meets with you. You should ask the lawyer about their fees. Most lawyers charge a flat fee for doing a power of attorney and will often offer a flat fee package deal that would include doing your power of attorney, will, personal directive, and perhaps a child guardianship document if you have minor children. Go here for ways to find a lawyer.
- Your attorney may have out-of-pocket expenses (called disbursements), such as for postage and telephone.
- If the attorney you appoint in the power of attorney document is also your lawyer and you ask them to do legal work like buying property, they may charge for doing that work.
- The Public Trustee and trust companies charge fees for acting as your attorney. Fees are based on the value of your estate and your income.
A friend or relative is not entitled to a fee unless there is an agreement between the two of you for payment. In that case, you must include the terms of payment in the power of attorney document. If you do not they will not be entitled to a fee. Often a family member or a friend acts as an attorney without payment.
CHOOSING YOUR ATTORNEY
Who can be my attorney?
Your attorney must be:
- age 19 or older, and
- able to understand what it means to act as an attorney under a power of attorney document and the responsibilities involved.
The best attorney is a capable adult you know well and trust.
Here are some things to think about when you are choosing an attorney:
- Your spouse or partner, a family member, or a close friend may be able to do a good job. Many people choose their spouse or partner.
- Think about choosing someone who knows about money, banking and business affairs. You can also state in your power of attorney that your attorney can get help from a financial expert if they need it, and the cost is paid out of your money. The attorney must be able to keep good records and report to a monitor when requested or to a family member no more than once a year.
- Your attorney for finances and property and your decision-maker for personal care (your ‘delegate’) may not be the same person. If so, will your attorney be able to work well with your personal care decision-maker to make decisions that overlap on money and personal care issues?
- Does your attorney get along with your close family and friends? Could there be conflicts?
- Will your attorney be available when you need them to act on your behalf?
- Does your attorney live in Nova Scotia or in Canada? It is best to name an attorney who lives in Nova Scotia, or at least in Canada. Naming a non-resident of Canada can cause legal and tax problems, so talk with a lawyer if you want to do that.
If you do not wish to or can't name a family member or friend as your attorney, you may name a trust company, a professional advisor (lawyer, accountant, sometimes an investment advisor), or the Nova Scotia Public Trustee. You should talk with them first. They do not have to accept this role and some professional advisors cannot or simply won't. You must check first with the Nova Scotia Public Trustee if you want them to act as your attorney.
Who can't be my attorney?
The law says your attorney cannot be:
- anyone who is going through a bankruptcy process (called an "undischarged bankrupt"). The law says it is still okay to choose them if they tell you in writing about the bankruptcy, and while you have capacity you agree in writing that you still want them to be your attorney.
TIP: be careful about choosing an attorney who has had trouble managing money. There might be a greater risk that you will lose money and property.
- anyone who has been convicted of an offence involving dishonesty, like fraud, theft, or forgery. The law says it is still okay to choose them:
- if they have a pardon (record suspension) for that conviction; or
- if they tell you in writing about the conviction, and while you have capacity you agree in writing that you still want them to act as your attorney.
TIP: be careful about choosing an attorney who has a conviction involving dishonesty. There might be a greater risk that the attorney will misuse the power of attorney.
- anyone who is paid to provide health care or support services to you. This restriction doesn't apply if your paid caregiver is your spouse, child, sibling, or parent.
It is best to name an attorney who lives in Nova Scotia, or at least in Canada. Talk with a lawyer if you want to name a non-resident of Canada as your attorney, as this can cause legal and tax complications.
Other than those restrictions, you can choose any trusted, capable adult as your attorney.
Can I name more than one attorney?
You can choose to name more than one attorney. Be careful about doing this. While there may be some good reasons to name more than one attorney, it can also lead to conflicts, costs and delays if your attorneys disagree. Be certain there is no possibility of conflict between your attorneys before you name more than one. If attorneys disagree they might have to go to court to settle the dispute.
Tip: If you name multiple attorneys it is a good idea to have a "tie-breaker" clause in your power of attorney document to say how you want your attorneys to resolve disputes.
If you choose to name more than one attorney you can say in your power of attorney how you want them to make decisions. You might say you want them to make decisions jointly or separately:
- Jointly means that your attorneys make decisions together. If you don't say anything in your power of attorney about how your joint attorneys should make decisions, the law says they must act by majority. That means the decision of the majority of your joint attorneys will be the final one. You can choose to say in your power of attorney that your joint attorneys must make decisions by unanimous agreement, instead of by majority. Be careful about doing that. If your attorneys cannot unanimously agree about a decision, there is no simple legal procedure to resolve the dispute. If one of the attorneys resigns the remaining attorney can continue to act. Otherwise in most cases someone may need to apply to court.
Your remaining attorneys can continue to act if one or more of your joint attorneys:
- gives up the job (resigns) by giving proper notice
- loses capacity
- will not act or is unable to act
- cannot be found despite doing reasonable things to try to find them.
- Separately. The law calls this "severally". Acting separately means that each of your attorneys can make decisions for you on their own. One attorney would not have to contact any of the others and hear their opinion before making a decision or acting, unless you say in your power of attorney document that they must do that.
Name at least one back-up attorney
If at all possible name at least one alternate attorney. An alternate attorney is sometimes also called a ‘back-up’ or ‘contingent’ attorney. Your alternate attorney can take over if your original attorney or attorneys cannot or will not act from the start or becomes unable to act part way through. The alternate attorney will have the same powers as the original attorney(s). If you do not name an alternate attorney and your original attorney(s) cannot or will not act, your power of attorney will be cancelled and someone may need to apply to court to be named as your representative.
Talk with your chosen attorney(s) about the job
Talk with the person or people you want to be your attorney(s) before you name them. Ask if they are willing to do this for you. They can say no to the job. Make sure that they want the job and have the time and the ability to carry out the duties. Looking after someone else's property and finances can be difficult and it takes time. Sometimes it includes responsibilities that last for years. If they say no, you must appoint someone else.
It is a good idea to talk with your attorney about:
- your attorney’s legal duties and responsibilities. See the section on “Your Attorney’s Role” below
- how and how often you expect them to communicate with you or with others you choose
- your instructions, values, wishes, beliefs, and attitudes about money and your financial goals. This will help guide your attorney to make decisions for you
- your plans for what you want to happen with the things you own when you die.
YOUR ATTORNEY'S ROLE
Who makes decisions and how are they made?
If you give someone your power of attorney:
- you can still make your own decisions and manage your own finances and property, until you become unable to do so
- your attorney can’t override decisions you make while you’re capable of making them yourself. Your attorney must consult with you and follow your instructions
- you can revoke (cancel) your power of attorney at any time, as long as you are still capable
What if I do not have capacity to make my own decisions?
If you have an enduring power of attorney and lose capacity, your attorney must involve you in decisions about your finances and property whenever it is reasonable to do that.
Your attorney must follow these steps to make decisions:
- Follow the most recent, relevant instructions you gave when you had capacity, if any
- If you did not give your attorney instructions, your attorney must follow your current wishes, if your wishes are reasonable
- If your wishes are not reasonable or your attorney can't determine what they are, your attorney must decide as they believe you would have. Your attorney must take your beliefs and values into account when they do this
- If your attorney doesn't know what decision you would have made, your attorney must decide based on what they believe is in your best interests.
How much power can I give my attorney?
You choose what your attorney can and can't do on your behalf. Your attorney can only do what you give them authority to do. You list their powers in your power of attorney document.
You can give your attorney general powers or specific powers.
You can give your attorney broad powers over all areas of your property and finances. They would be able to do almost anything that you can do with your finances and property. With general authority an attorney would commonly be able to do things like pay your bills, manage your banking and investments, do your taxes, and buy and sell property.
You can limit what your attorney can do to a single decision, specific task or tasks, or to a specific time period.
A specific power of attorney is most often used when you can't manage your financial and property matters for a short period of time. A common example is if you need someone to sell a piece of land for you or to deal with your banking and bills for you while you are travelling. It is important that a specific power of attorney include all steps involved in the work you want done. For example, a power of attorney to buy a piece of land should include the power to sign all the needed documents and it may be time-limited for a few weeks or months.
A note about buying and selling land with a power of attorney
If you want your attorney to deal with land, your power of attorney must be recorded at the Land Registration Office where the land is located before the sale or purchase takes place. The power of attorney must be signed under seal and have an affidavit of execution. If you are working with a lawyer they will register the necessary documents.
You can find phone numbers for Land Registration Offices in the government pages of the phone book under Land Registration or visit www.novascotia.ca for locations. There is a fee to record documents. Contact staff at the Land Registration Office for information on current fees for recording documents.
Land transactions done with a power of attorney are not valid until the power is registered.
There are always some things your attorney cannot do
Your attorney cannot:
- Make a will for you
- Change or cancel (revoke) your will
- Make a new power of attorney for you
- Change a beneficiary designation on your assets, unless the court orders this or the document specifically authorizes changes
- Vote in an election for you
- Make an affidavit (sworn document) for you.
Do I have to pay my attorney?
Paying your attorney a fee for their work
Professionals such as trust companies, lawyers, or the Nova Scotia Public Trustee's Office charge fees for acting as your attorney. Fees are based on the value of your estate and your income. A friend or relative is not entitled to a fee unless there is an agreement between the two of you for payment. In that case, you must include the terms of payment in the power of attorney document. If you do not they will not be entitled to a fee. Often a family member or a friend acts as an attorney without payment.
Re-paying your attorney's expenses
Your attorney is allowed to pay themselves for reasonable out-of-pocket expenses they have for properly doing their job as your attorney, unless you say something different in your power of attorney. This is called reimbursement. Examples of expenses are taxis, government fees and court fees.
Your attorney's legal duties and responsibilities to you
Your attorney must be loyal to you
This includes all of the following duties:
- following and staying within the power you give them in the power of attorney document
- acting in good faith
- acting only in your best interests
- acting only for your benefit, unless you give informed consent for them to act to benefit someone else
- taking good care as they make decisions for you
- using reasonable care and skill
- avoiding conflicts of interest
- not making secret profits
- not profiting personally from what they do for you, or from your property, unless your power of attorney says they will be compensated for helping you.
Your attorney must involve you in decisions whenever it is reasonable to do that
Your attorney should consult with you and ask you what you want. You have a right to ask questions and to be kept informed. Remember that as long as you have capacity you can continue to manage your own finances and property and make your own decisions even when you've given someone power of attorney.
If you do not have capacity to make your own decisions, your attorney must be guided by what they know of you and by your instructions, values, wishes, beliefs, and attitudes about money. See the section "Who makes decisions and how are they made?" for more about how your attorney must make decisions.
Your attorney must give notice when they begin to act for you
When your attorney starts acting for you, your attorney must notify all of the following, in writing:
- you (the donor), and
- your monitor, if you name one in your power of attorney (See 'Monitors and Other Ways to Prevent Misuse of a POA' for more information about monitors), and
- anyone else you list in your power of attorney who you want to get notice.
If no one on the above list is capable of getting the notice, or if you don't list anyone in your power of attorney who you want notified, your attorney must notify your immediate family members and your delegate(s) under a personal directive, if you have one. Your immediate family members are your spouse, registered domestic partner or common law partner, adult child, adult sibling, or parent. You can say something different in your power of attorney if these are not the people you want your attorney to notify when they start acting for you.
Your attorney must stop acting if you lose capacity but later regain it
If you have an enduring power of attorney and are found to lack capacity to make your own decisions, but you later regain your ability to make decisions, your attorney must stop acting.
Your attorney must keep a record of what they do for you
Your attorney must keep current, detailed and accurate records of what they do for you as an attorney.
In certain situations your attorney may be required to provide a complete record of all transactions they made for you, including a statement of the things you own and what they are worth (assets) and what you owe (liabilities), and how that financial picture may have changed over the period they are reporting on. This is called giving an 'accounting'.
Financial records your attorney should keep include:
- a current list of what you own and what you owe, with known values or sensible estimates
- all bank records (account statements, withdrawals and deposit slips for all transactions, cancelled cheques, online records)
- all income tax information (notices of assessments, T4 and T5 slips, other supporting documents)
- all receipts for purchases they make when acting for you, such as parking, taxis, and, if applicable, any payments made to the attorney
- all invoices received and paid on your behalf
- other important letters and papers (examples are deeds, leases, notices from landlords and employers, insurance information).
Your attorney should always be ready to explain and account for what they do on your behalf. You can require your attorney to give you an accounting at any time. You can also require your attorney to give an accounting to others you choose, including a monitor. See the section 'Monitors and Other Ways to Prevent Misuse of a POA' for more about ways you can make sure your attorney is accountable for what they do and does not misuse the powers you give them.
Your attorney should not mix their money and property with yours
Your attorney must keep their own bank and investment accounts separate from your account(s). Your attorney should never mix their own accounts or property with yours unless that was already done with your knowledge and agreement before you lost capacity.
Your attorney should respect your estate plan whenever it is reasonable to do that
Your attorney must not dispose of assets your attorney knows are part of your estate plan, unless they need to do that in order to carry out their duties to you.
Your estate plan is your plan for what you want to happen with the things you own when you die. Your estate plan could include your will, consideration of jointly owned assets, designation of beneficiaries on life insurance, registered plans (examples: RRSPs, TFSAs, RRIFs), and trusts.
For example, if you tell the attorney what specific gifts you've listed in your will or have as part of your estate plan, your attorney should not sell or give that property away, unless they must do that to make sure your needs are met. Meeting your needs comes first.
Your attorney must not use your money to give gifts
Your attorney can give gifts using your money or property only if your power of attorney says they can.
If you say in your power of attorney that your attorney can give gifts, your attorney must still be careful. Your well-being comes first. Before giving a gift your attorney must make sure there will still be enough money to meet your personal and health care needs and to meet your legal obligations. Your attorney would not want to sell any item you have gifted in your will. For this reason think about giving your attorney a copy of your will.
Your attorney must not give their power to someone else
Your attorney must not give or 'delegate' the authority you give them to someone else. However, this restriction does not apply if you say in your power of attorney that your attorney is allowed to delegate their power to someone else.
MONITORS AND OTHER WAYS TO PREVENT OR STOP MISUSE OF POWER OF ATTORNEY
Basics about the risk of abuse
Power of attorney generally gives your attorney the power to do almost anything you can do with your finances and property. Government, banks or other third parties will rely on what's in your written power of attorney document. They will not usually contact you first to see if you approve of what the attorney is doing.
Most people who are named in a power of attorney are honest and act reasonably. They try to do a good job and help you as they said they would and live up to their obligations.
There is a risk though that the attorney could misuse or abuse that power because they believe that they know what is best for you, or they want to get money or property for themselves.
This section talks about some things you can do to help prevent or stop misuse of your power of attorney.
Name a monitor
You have the option of naming someone to review and watch over your attorney's activities and decision-making. This person is called a monitor.
A monitor can help protect your well-being and finances if your attorney misuses their authority.
A monitor may:
- visit you and communicate with you at any reasonable time
- check in with the attorney to make sure your attorney is taking good care in managing your finances and property, including asking your attorney for records of what the attorney has done on your behalf
- if you lose capacity, require that your attorney give the monitor information, records or a detailed accounting of what the attorney has done on your behalf
- apply to court to deal with any problems related to the power of attorney.
You can say in your power of attorney if there are other things you want your monitor to be able to do in overseeing your attorney.
If your monitor believes your attorney is misusing the power of attorney, the monitor must tell you and any other attorneys named in your power of attorney.
If you choose to name a monitor in your power of attorney:
- pick a capable, responsible adult you trust,
- talk with them about it first to make sure they are prepared to do it.
Your monitor cannot be your attorney or attorneys. Other than that you can choose any trusted adult to be your monitor, including someone who lives outside Canada.
Other ways to prevent misuse of a power of attorney
Here are some other things you can do help stop someone from abusing your power of attorney:
- Choose carefully. Choose an attorney you can trust who will involve you in decisions when reasonable to do that, keep you informed, and respect your instructions and wishes.
- Continue to pay attention to your financial and property affairs. Ask your attorney questions. Get regular statements and updates. Do not give up all control to that person.
- Require your attorney to give you, or someone else if you lose capacity (a monitor), regular updates on how they are managing your affairs.
- If you have a lot of savings, property, or investments, think about appointing a professional such as a lawyer or a trust company to act on your behalf. Talk with your banker or financial advisor about it. Look carefully into the costs before you make a decision.
- Think about choosing more than one attorney to act jointly. It is not likely that both will be dishonest or negligent. It is best to talk with a lawyer if you want to name two or more attorneys to act jointly.
- Give a specific rather than a general power of attorney. For example, if you need your attorney to deal with just one asset, such as a bank account, give them power to do only that. However, a general power of attorney is usually more practical and useful.
- Check your bank statements and cancelled cheques carefully. You can put a limit on the amount that your attorney can withdraw from your accounts. If the attorney wants to withdraw more than that amount, then you would have to tell your bank that you agree.
- Tell your banks, financial institutions, and investment advisor to tell you about any transactions over a set limit.
- Make a list of the things you own: your property, valuable jewellery and artwork, savings, furnishings, and investments. Keep it up to date. Give a copy to your attorney, and to at least one other person you trust (such as a monitor if you name one)
- If you have investments, arrange for your investment advisor to keep you informed about all dealings. You can also give your investment advisor the name of a Trusted Contact Person (TCP). A TCP is someone you trust who knows you well, has nothing to gain financially from you, and is not your attorney. Your investment advisor can contact your TCP if they see signs that you may be a victim of financial abuse. A TCP does not have power over your finances and does not have access to your financial information or accounts. Talk with your investment advisor or contact the Nova Scotia Securities Commission for more information about naming a TCP.
- Read the Government of Canada’s publication Powers of Attorney and Joint Bank Accounts, for more information that can help you consider and manage the risks.
- Have a lawyer who does estate planning write your power of attorney. A lawyer can inform you about steps you can take to protect yourself, and advise you about what to include in your power of attorney document to increase your protection from any abuse.
What can I do if my attorney misuses the power of attorney?
Below is a list of some things you can do if your attorney misuses the power of attorney. What you do will depend on your situation.
Talk with a lawyer or someone else you trust
At the very least, talk over your concerns with a lawyer or with someone else you trust. Get support to help you review your options and to decide what steps you want to take.
Get an accounting
Ask your attorney to give you the records detailing how they have managed your finances and property (give you an accounting). Your attorney has a legal duty to do this when you ask. Review the records or ask someone who knows about finances to review them with you. If your attorney does not give you the records you need or if the records are worrying, talk with a lawyer about ways to solve the problem. If needed you, or others on your behalf, can go to court to ask the court to order your attorney to give an accounting.
If you have an enduring power of attorney and later lose capacity, your attorney can be required to account to the following about how the attorney is managing your finances and property:
- to your monitor, if you named one, at reasonable intervals
- to your immediate family member(s), no more than once a year. This applies if you did not name a monitor, if your monitor is your attorney's spouse or partner, or if your monitor is not available or not able to ask for an accounting
- to the Supreme Court of Nova Scotia and/or to the Nova Scotia Public Trustee. The court can order the attorney to account to the Public Trustee, to another person, or to the court.
Who can't get an accounting? The law says that if you and your spouse or partner separate and are ending your relationship, your spouse or partner would not be entitled to get an accounting from your attorney. You can say in your power of attorney if there is anyone else you would not want to be able to get an accounting.
Change or end your power of attorney
You can end (revoke) your attorney's authority under your power of attorney and use your back-up attorney. If you did not name a back-up attorney, you can make a new power of attorney. See the section on Changing or Ending a Power of Attorney for information on doing that.
If you no longer have capacity to change or cancel your power of attorney someone else may need to apply to court on your behalf to deal with the situation.
Go to court
You can apply to the Supreme Court of Nova Scotia. A lawyer can help you with that. You can go to court without a lawyer if you cannot pay one. It is a good idea to get some advice from a lawyer if you can, even if you cannot pay a lawyer for full representation.
Your monitor (if you named one), the Public Trustee, or any of the following people (called interested persons) may also apply to court if they have concerns:
- your spouse or partner
- your adult child, grandchild or great-grandchild
- your parent
- your adult sibling
- your adult niece or nephew
- anyone else listed in your power of attorney
- your delegate in your personal directive
- a representative of a care home where you live
- after you die, the executor or administrator (personal representative) of your estate.
If the court thinks it is appropriate, the court can:
- require your attorney to give records to the court or to another person
- require your attorney to go to court to explain why they have not met their responsibilities to you or have not followed a court order
- change the terms of the power of attorney or remove the attorney and appoint someone else to manage your affairs. There are special rules for doing these things
- end the power of attorney
- find the attorney responsible (liable) for breaching the attorney's duties to you, and require them to pay money to you or your estate, or give back property
- make any other order it thinks is appropriate.
What your financial institution can do
A financial institution is a bank, credit union, loan or trust company, investment advisor or dealer, insurer, insurance agent or broker.
Your financial institution may:
- refuse to follow your attorney's instructions,
- suspend or limit money withdrawals or transfers from your accounts.
If your financial institution does these things without your involvement they must notify you, your monitor and any other attorneys.
If you've named a Trusted Contact Person for your investments, your investment advisor may also notify your Trusted Contact Person.
Put a fraud alert on your credit report
Credit reporting agencies collect information about a person’s credit and payment history—the person's credit report. The two main credit reporting agencies in Canada are Equifax and TransUnion. It is important to check your credit report if you are or may be a victim of fraud—such as if your attorney has misused your power of attorney. The Financial Consumer Agency of Canada has information about how to get your free Credit Report.
You can also place a fraud alert on your credit report. A fraud alert is a 'red flag' notice on your credit report that alerts creditors you are or may be a victim of fraud, including identity theft. Contact Equifax and TransUnion for more information.
Talk with the police
It is a criminal offence to misuse a power of attorney. If your attorney is using your property or money for their own benefit or for someone else's benefit without your consent, you should talk with a lawyer and the police.
CHANGING OR ENDING A POWER OF ATTORNEY
Can I change my power of attorney?
You can change your power of attorney if you are capable of understanding what it means to do that and the effects of changing it. This is called varying your power of attorney.
However, it is best to make a new power of attorney rather than change your existing one. A power of attorney that has changes can cause confusion. It is just as easy to make a new one because the legal requirements for making a valid change are the same as the requirements for making a power of attorney (see Making a Power of Attorney).
If you do change your power of attorney you must tell your attorney or attorneys in writing about the change. You should also do the following:
- Write to anyone who has been relying on your power of attorney. Tell them that you have changed your power of attorney and what the change is. Keep copies of these letters.
- Ask everyone who has a copy of the previous power of attorney document to return it to you. Banks and some other organizations may need to keep a copy of the document for their files.
- Contact the Land Registration Office to find out if the power of attorney is registered there. If so, your changed or new power of attorney document will need to be registered to replace the old one.
How does a power of attorney end?
A power of attorney can end in any one of the ways listed below.
You revoke it in writing
You can end your power of attorney at any time if you are capable of understanding what it means to do that and the effects of ending it. This is called revoking your power of attorney.
To revoke your power of attorney, you must tell your attorney or attorneys in writing. This is called giving notice of revocation. The written notice of revocation must be dated, and you must sign it. It is a good idea to have your notice of revocation witnessed by at least one independent adult who is with you when you sign it, and who signs it too.
If you revoke your power of attorney, you should also do the following:
- Write to all the people and businesses who are dealing with or have dealt with the attorney. Anyone who deals with the attorney will think the power of attorney is valid unless they are told it is not. Tell them that the power of attorney has been cancelled. You can give them a copy of your notice of revocation if you wish. Keep copies of these letters.
- Ask everyone who has a copy of the power of attorney document to return it to you. Banks and some other organizations may need to keep a copy of the document for their files.
- Contact the Land Registration Office to find out if the power of attorney is registered there. You do not need to make changes at the Land Registry if the power of attorney was for a specific time period that has ended or for a task that has been completed.
You make a new power of attorney
A new power of attorney ends (revokes) any prior power of attorney you made unless you say something different in your new power of attorney. An existing power of attorney and a new power of attorney must not conflict and should deal with separate matters.
Sometimes financial institutions may provide a power of attorney form that gives a specific power of attorney over funds held by that institution only. If you sign a bank form power of attorney it may revoke a general power of attorney you already have. Unless you need your attorney to deal only with that bank on your behalf, instead you may want to do a single general power of attorney document that covers everything (ideally done with a lawyer's help), to avoid confusion and disputes.
If you have assets or property outside Canada you may need a separate power of attorney that is made based on the law in that country, made by a lawyer or other legal professional in that country, and that can be used to deal with your finances and property there. If that is your situation you should also see a lawyer in Nova Scotia to make sure a power of attorney you have or make elsewhere does not revoke or conflict with a Nova Scotia power of attorney by mistake.
Written notice by the attorney
Your attorney can tell you in writing that they no longer want to act as attorney. This is called resigning.
If you are capable of understanding what it means for your attorney to resign, your attorney should give their written resignation to:
- you, and
- your monitor, if you named one, and
- any other attorneys named in your power of attorney.
If your attorney resigns and you did not appoint any other attorneys or a back-up attorney in your power of attorney, you should write to the bank and others and tell them that the power of attorney has been cancelled. Keep a copy of these letters. Ask your attorney to return the power of attorney document to you.
If you are not capable of understanding what it means for your attorney to resign, your attorney may give their written resignation to the following, in order of priority:
- your monitor, if you named one, and to any other attorneys named in your power of attorney
- your immediate family members and personal care delegate, only if you don't have a monitor or other attorneys or they aren't available to be notified,
- the first available of your grandparents, grandchildren, aunts or uncles, nieces or nephews, or other relatives, only if no immediate family members are available,
- the Public Trustee, as a last resort.
Loss of capacity
If you cannot make important decisions for yourself—you lose capacity —your power of attorney ends automatically unless it is an enduring power of attorney.
If your attorney loses capacity and you have not named a joint attorney or back-up attorney, your power of attorney ends automatically. This is the case whether it is an ordinary or enduring power of attorney.
When the Public Trustee is acting for someone who loses capacity, the Public Trustee will continue to act for that person.
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 professional who manages the affairs of a bankrupt person.
If your attorney becomes bankrupt they can still act for you if they tell you in writing about the bankruptcy, and while you have capacity you agree in writing that you still want them to be your attorney. Otherwise, your back-up attorney takes over and acts on your behalf, and your power of attorney document remains in effect. If there is no back-up attorney your power of attorney ends.
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.
If the court thinks it is appropriate, the court can end an attorney's authority or end a power of attorney. The attorney, a monitor, the Public Trustee, your attorney or another interested person would need to apply to court to ask for that to happen. A judge would hear the facts and decide what should happen.
When you die, the power of attorney ends and your attorney must stop acting.
If the attorney dies, the power of attorney ends unless you have named a joint attorney or 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.
OTHER FREQUENTLY ASKED QUESTIONS
Do powers of attorney have to be registered in Nova Scotia?
A power of attorney only has to be registered when it gives authority to deal with land. Then it must be registered at the Land Registration Office where the land is located.
Otherwise there is no registry for powers of attorney in Nova Scotia.
Is a power of attorney made outside Nova Scotia valid here?
If you have a valid power of attorney or similar document from outside Nova Scotia that gives someone power to deal with your finances and property for you it is a valid power of attorney in Nova Scotia. You do not need to make a Nova Scotia power of attorney.
If you are not sure or if you have questions, ask a Nova Scotia lawyer to look at your document to see if it meets the requirements of the law here.
Is a power of attorney made in Nova Scotia valid outside Nova Scotia?
If your attorney may need to use the power of attorney outside Nova Scotia, check with a lawyer to see if you should write another power of attorney for that place. If you have assets or property outside Canada you may need a separate power of attorney that is made based on the law in that country, made by a lawyer or other legal professional in that country, and that can be used to deal with your finances and property there. Canadian powers of attorney may also need to be authenticated for use outside Canada, depending on the legal requirements of the particular place. Contact Nova Scotia's Department of Justice, Authentication Services or Global Affairs Canada, Authentication Services if a power of attorney needs to be authenticated for use outside Canada.
I made a power of attorney before July 5, 2022. Do I need to replace it?
The law in Nova Scotia on powers of attorney changed on July 5, 2022. If you made a valid power of attorney before that date it is still valid under the new law. You don't need to make a new power of attorney just because the law has changed. You can make a new one if you wish though. It is a good idea to review your power of attorney and your whole estate plan whenever you have big changes in your life, and at least every few years.
Where should I keep my power of attorney?
You should put your power of attorney document in a safe place. A fire-proof location like a fire-proof lock box or safe is the best place. Make sure you tell your attorney where the document is stored so that they can find it if it is needed.
If you want your attorney to start using the power immediately, give it to them. Or give it to them and tell them when they should start acting. Keep a copy for yourself in a safe place. Give a copy to your bank, credit union or trust company, and to any other parties that your attorney will deal with for you. Keep a list of the businesses and people who have copies of your power of attorney in case you have to make any changes or want to revoke it.
If you have a power of attorney that may not be used for a while, perhaps never, do one of these things:
- Put it in a safe place that your attorney can access quickly, if they need to, and tell them where it is.
- Leave it with another person you trust, such as your lawyer, and give clear instructions about when to release it. Remember, though, that this person could die or move away.
- Give it to your attorney to keep in a safe place until it is needed.
If you only have one signed original of the power of attorney document, do not put your power of attorney in a safety deposit box that is in your name only, as your attorney may not be able to get access to it quickly. If you have another original or a notarized copy you can leave one in a safety deposit box. Think about adding the attorney’s name to the safety deposit box as well for ease of access.
It may be many years before your power of attorney is needed, if it ever is needed. As time passes, keep track of where you are keeping your power of attorney. Tell the people in your life who need to know about your power of attorney where to get it when and if it is needed.
Where can I get more information on power of attorney?
- Contact a lawyer who for legal advice. It is a good idea to speak with a lawyer who focuses on estate planning and if possible a lawyer who has a Trust and Estate Practitioner or “TEP” designation. Here are some ways to find a lawyer.
- Contact the Legal Information Society of Nova Scotia for legal information.
Last reviewed: March 2023
Reviewed for legal accuracy by: Erin O'Brien Edmonds, KC, TEP
Some content adapted, with permission, from Public Legal Education Association of Canada members.