While your Will names an Executor who will handle the administration of your estate after you die, a Power of Attorney is a document that appoints another person to handle your affairs. This includes making important decisions about your healthcare, finances, and/or property in the event that you are incapacitated or incompetent. You typically write these documents at a time when you have full capacity, to come into effect if you were ever to lose capacity.
We have written extensively on the importance of a Financial Power of Attorney in other blog articles. It is a critical document no matter what your family situation happens to be.
Unlike Wills, which are generally recognized throughout Canada regardless of the province in which they were drafted, the law regarding Powers of Attorney can differ quite a bit between provinces. This means there is no such thing as a “Canadian Power of Attorney for Finances” or “Canadian Power of Attorney for Healthcare.” Instead, these documents may have different names, and different legal requirements for validity, depending on your province of residence. This article will attempt to explain some of these differences, and how LegalWills.ca simplifies the process of creating a new Power of Attorney for every province in which you hold assets.
Powers of Attorney and Healthcare Proxies
As explained in our article about essential estate planning documents, a Financial Power of Attorney gives someone else authority to make decisions about things like whether to sell your home, manage your investments, pay your bills, and file your taxes on your behalf while you are incapacitated. Depending on how it is drafted, a Power of Attorney can be specific, for example limited to certain property (like your home or investment portfolio), or general, permitting complete control over your finances.
Generally a Power of Attorney written to cover a specific asset is put in place when you are unavailable rather than incapacitated. For example, if you are travelling overseas and you need somebody to sell your car on your behalf, you can do this with a specific Power of Attorney. For the purposes of estate planning, a Power of Attorney is usually a “General” Power of Attorney which says “if I was to ever lose capacity, I would like this person to take control of my financial affairs for me.”
A Power of Attorney for Healthcare may also be called a Healthcare Proxy, Healthcare Representative, or Medical Power of Attorney depending on your province of residence. This document names an individual who will make medical decisions for you if you are unable to make them yourself. Some people call this document a “Living Will” but this term has no legal recognition in Canada (even though at LegalWills.ca we use the term “Living Will” to describe this service).
Signing Powers of Attorney
No matter where you live, these legal documents must be signed while you have the necessary capacity to understand the nature and consequences of appointing another person to handle your affairs. It is therefore crucial to draft your Powers of Attorney for Finances and Healthcare before you need them. You must be capable of selecting a person you trust and understand the types of powers being granted to them. The specific requirements for signing Powers of Attorney also differ by province, although it must always be signed in the presence of at least one witness.
It is worth noting that the signing requirements for a Financial Power of Attorney do vary across Canada. Manitoba in particular has very specific rules for who can serve as a witness to the signing of a Power of Attorney.
Recognition of Powers of Attorney from Another Province in Canada
Unlike a Will, a Power of Attorney drafted and signed in one province will not necessarily be recognized or enforceable in another province, unless there is some legislation in that other province which provides for recognition.
British Columbia’s Representation Agreement Act provides that any agreement which performs the function of a representation agreement, made outside British Columbia but complying with the prescribed requirements of a representation agreement, is deemed to be a representation agreement under the RAA. A representation agreement permits an adult to authorize their representative to make decisions relating to personal care, routine management of financial affairs (including bill payments and investments), major and minor health care (as defined in related legislation), and legal services.
In Manitoba, The Powers of Attorney Act states that a Power of Attorney executed in another jurisdiction is valid in Manitoba where it is valid according to the law of the province it was originally created, and that it includes a specific provision which states that the document continues “despite the mental incompetence of the donor after the execution of the document.” The Health Care Directives Act recognizes advance directives relating to health care which are made in writing, signed by the maker and one witness, and dated.
In Nova Scotia, there are no provisions for recognition of extra provincial Powers of Attorney, but the Medical Consent Act allows competent adults to designate another adult to give consent or directions respecting their medical treatment. The only requirement is that the document be “in writing, signed by the person giving it, and witnessed by a person who is not the person receiving it or the spouse of the person receiving it.”
Legislation in Prince Edward Island similarly does not provide for recognition of documents from another jurisdiction. The Consent to Treatment and Health Care Directives Act does recognize documents which are made in writing, dated, and signed by the maker and a witness, as well as being valid in the jurisdiction in which they were made or in which the person who made the directive was habitually resident.
Saskatchewan’s Powers of Attorney Act recognizes documents from other provinces that are valid according to the law of their place of execution, provided the document states that it is not terminated by a lack of capacity occurring after its execution. The Health Care Directives and Substitute Health Care Decision Makers Act recognizes directives made outside of the province that comply with the requirements of the HCDA, being in writing and dated and signed by the person making the directive, or by a witness if the person is unable to sign themselves.
Ontario residents must be especially careful. The province’s Substitute Decisions Act, 1992 creates a unique issue whereby executing a new continuing Power of Attorney (even one to manage assets in another province) will automatically terminate any existing Power of Attorney, unless the new document specifically provides that there will be multiple continuing Powers of Attorney. Documents that are valid outside of Ontario will be valid if they complied with the law of the jurisdiction in which they were signed, or the law in which the grantor was living.
In Quebec, the Civil Code recognizes Powers of Attorney for Healthcare and for Finances, which are called Mandates. It must be either notarized or signed in the presence of two witnesses and may need to be approved by the court before it can be relied upon.
Legislation in Alberta and Newfoundland and Labrador are silent on the validity of extra-provincial Powers of Attorney.
Institutions and Validity of Powers of Attorney for Finances
In addition to differences in provincial legislation, some financial institutions have also implemented requirements for Powers of Attorney above and beyond the regulatory scheme. Because these documents purport to grant legal authority to manage another person’s accounts, banks are especially wary of the potential for liability should they rely on false or conflicting documents. Accordingly, many banks require that a Power of Attorney be either sworn (before a commissioner for oaths) or in some cases notarized (by a licensed notary) to confirm its truth and/or authenticity. Transfers of real property are also likely to require a notarized Power of Attorney.
If you are preparing a Power of Attorney that will grant authority to deal with any institution on your behalf, or to sell land, we recommend checking your institution’s policies for accepting signed Powers of Attorney to ensure all necessary requirements are met. Where documents must be notarized, LegalWill.ca provides a free, downloadable “Affidavit of Execution.” This document can be signed by your witnesses in the presence of a notary. The cost of notary services varies by jurisdiction, but may be as little as $20.
Create Powers of Attorney for Finances and Healthcare Easily with LegalWills.ca
LegalWills.ca offers Canadians a straightforward, approachable way to create a Power of Attorney document that names a representative for legal, financial, and business affairs. The MyLivingWill service allows you to specify your health care directives and to name an individual who can make decisions on your behalf with regard to your medical care in the event that you are unable. When you use LegalWills.ca to prepare this document, it will be tailored to the laws of your province of residence.
If you move between provinces, or have assets located in a different Canadian province, your membership allows you to create a new Power of Attorney for that province by simply changing the information in your LegalWills.ca profile and generating a new Power of Attorney at no additional cost.
Get Started on Preparing a Financial Power of Attorney Today
By using the service at LegalWills.ca you can have your Financial Power of Attorney and “Living Will” in your hands in about 20 minutes from the comfort of your home. No lawyer is required. Remember, this is a document that should be prepared while you are fit and healthy, and will only come into effect if you lose capacity.
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