Enduring Power of Attorney - 4 Factors in Choosing an Attorney
Enduring Power of Attorney
Depending on your jurisdiction, some provinces and territories in Canada refer to an Enduring Power of Attorney as:
A Continuing Power of Attorney for Property;
An Enduring Power of Attorney for Property; or
An Enduring Power of Attorney Appointing a Property Manager.
For the purposes of this site, we will refer to all of the above as an "Enduring Power of Attorney".
Enduring Power of Attorney FAQ
What is an Enduring Power of Attorney?
Power of attorney documentation is only in effect while you are alive. There are two types of power of attorney documents in law. The first is a general or run of the mill Power of Attorney, and the second is an Enduring Power of Attorney.
In a general Power of Attorney, the maker (known as the “Donor”) gives authority to another person (known as the “Attorney”) to deal with the Donor’s financial matters or specific property. This type of Power of Attorney requires both the Attorney and the Donor to have mental capacity to handle financial matters. If the Donor loses mental capacity, then the Power of Attorney comes to an end.
An Enduring Power of Attorney, on the other hand, takes effect while you are still alive and endures for the period of time that you lack capacity to deal with your financial matters. Under an Enduring Power of Attorney, the maker appoints a person (an "Attorney") to deal with the maker’s financial and property matters and can come into effect immediately or when the maker is declared mentally incapable.
Terminology for each Canadian Jurisdiction:
Enduring Power of Attorney - British Columbia, Alberta, Manitoba, Prince Edward Island, Newfoundland & Labrador, Nova Scotia, Nunavut, Northwest Territories & Yukon Territory
Continuing Power of Attorney for Property - Ontario
Enduring Power of Attorney for Property - New Brunswick
Enduring Power of Attorney Appointing a Property Manager - Saskatchewan
In the absence of an Enduring Power of Attorney and in the case of your inability to deal with your financial matters, the only other way that a loved one or friend can obtain the legal authority to deal with your finances is to apply to become your legally appointed Trustee through the court process. This can be a lengthy, time consuming and expensive process.
An Enduring Power of Attorney does NOT give your Attorney the authority to make personal (including health care) decisions for you. For that you need a separate document called a Personal Directive.
What age do I have to be to make an Enduring Power of Attorney?
You must be of legal age in your province or territory to make an Enduring Power of Attorney.
What makes an Enduring Power of Attorney valid?
To be valid, the maker MUST be of legal age and have the required mental capacity to give instructions for the creation of their Enduring Power of Attorney and also at the time of signing their Enduring Power of Attorney documentation. The Enduring Power of Attorney must also be signed in accordance with the requirements set out in law (dated, signed and properly witnessed).
Should you have any questions/concerns about mental capacity, please seek the assistance of qualified legal and medical practitioners.
What are the rules governing the Attorney in an Enduring Power of Attorney?
Caselaw and legislation impose a number of rules and duties on your Attorney. Among them, most notably:
Your Attorney has a duty to represent your interests and never place his/her own interests above yours. Ie. your Attorney cannot use your assets for his/her own benefit or the benefit of any third parties to your detriment.
Your Attorney must make decisions on your behalf that a reasonable person would make, meaning: your Attorney must exercise judgement and care that a person of prudence, discretion and intelligence would exercise in the conduct of his/her own affairs.
Your Attorney must keep all of your funds in a separate account from their own.
Your Attorney has a duty to provide an accounting to certain persons as prescribed in the legislation.
Your Attorney must keep a record of all income and expenses received or paid on your behalf.
Your Attorney should make an inventory of your property and finances as soon as the Enduring Power of Attorney is effective.
Who can I appoint to act as my Attorney?
Throughout Canada, the person you appoint to be your Attorney must be of legal age in your province/territory and must be mentally capable. In addition, in Ontario, New Brunswick, and British Columbia, your Attorney cannot be someone whom you pay to provide services to you (health care, personal, or otherwise) unless that person is your spouse or relative. In Nunavut and the Northwest Territories, your Attorney cannot be an undischarged bankrupt. In New Brunswick, your Attorney also cannot be someone who is convicted of an offence involving dishonesty.
How long will it take to have my Enduring Power of Attorney?
Once you have completed the fillable Enduring Power of Attorney PDF, uploaded and paid for it you will receive your Enduring Power of Attorney by email in 2-3 business days. Need it quicker? We can process an Enduring Power of Attorney in 1 business day for a rush fee (please review your options when uploading and paying for your Enduring Power of Attorney).
How much does an Enduring Power of Attorney cost from a law firm versus an Enduring Power of Attorney using Make Your Own Wills?
You can expect a law firm to charge you fees starting at $200 (CAD) or more for an Enduring Power of Attorney. You will also be required to attend that law firm's office on two occasions: the first is when giving instructions and the second a week or more later is to sign your Enduring Power of Attorney.
An Enduring Power of Attorney using Make Your Own Wills costs only $99 (CAD), is ready for signing within 2- 3 business days and is signed by you and your witness(es) in the comfort of your own home.
What about witnesses?
Not just anyone can sign as witness to your Enduring Power of Attorney. Your witness(es) MUST NOT be:
An Attorney named in your Enduring Power of Attorney;
A spouse or partner of an Attorney named in you Enduring Power of Attorney; or
Your spouse or partner; or
A minor (under the age of majority).
Some jurisdictions require two witnesses, while others require only one. Some jurisdictions require only certain persons to act as witness: in New Brunswick and the Yukon Territory, your witness MUST be a lawyer. Whereas in Manitoba, your witness MUST be:
an individual registered or qualified to be registered to solemnize marriages in Manitoba;
a judge, justice of the peace or magistrate in Manitoba;
a duly qualified medical practitioner;
a notary public appointed in Manitoba;
a lawyer entitled to practice in Manitoba;
a member of the Royal Canadian Mounted Police or a police officer in a municipal police force in Manitoba.