Enduring Power of Attorney in Newfoundland and Labrador

Thanksgiving dinner in Gander had reached the pie stage when a 70-year-old widow's grandson, eighteen since the summer and newly enrolled at Memorial, made his offer. He would look after her banking "when the time comes," he said, and he meant it. She was touched. She was also a careful woman who keeps her papers in a biscuit tin in the hall closet, and the next week she sat down with her daughter at the kitchen table, the tin open between them, to find out whether her grandson could actually take that role on.

He could not, at least not yet. Newfoundland and Labrador's Enduring Powers of Attorney Act sets a minimum age for attorneys that is a year above his. It is a compact statute, and most of what a family needs to know fits in a handful of sections. This guide works through them. How the province stacks up against its neighbours is covered in our Canadian property power of attorney explainer.

A compact Act with a clear core #

The Act's central idea appears in s. 3(1). A power of attorney is enduring when it is signed by the donor (the person giving the authority), witnessed by someone who is not the named attorney or that person's spouse or cohabiting partner, and contains a provision stating, expressly or impliedly, that it may be used during the donor's legal incapacity.^[NaN]

Two related provisions back that up. Section 2(3) says a power of attorney intended to be used during, or to continue through, the donor's later legal incapacity is not ended merely because that incapacity occurs.^[NaN] And s. 5 confirms that an express provision allowing use during a later incapacity is valid and effective, subject to the conditions and restrictions in the document that fit with the Act.^[NaN]

The word "impliedly" in s. 3(1) gives some room, but clear wording is kinder to everyone. An attorney presenting the document at a bank, years from now, will have an easier time if the continuing effect is stated in plain words.

The attorney's age: 19 #

Section 3(2) generally requires a person to be 19 or older to be named as an attorney in an enduring power of attorney.^[NaN] The Act separately defines an adult as someone who has reached the age of majority (s. 2(1)(a)).^[NaN]

For the family in Gander, that settled the immediate question. The widow named her daughter. The grandson was not left out of the conversation; they agreed to revisit things in a year or two, which the Act allows for, as discussed below.

One witness, chosen from outside the circle #

Newfoundland and Labrador's statute asks for one witness. The person cannot be the attorney named in the document, or that person's spouse or cohabiting partner.^[NaN] Some people choose to add a second witness for their own peace of mind, but the Act's requirement is one.

"Cohabiting partner" has a specific meaning. Under s. 2(1)(d), it refers to either of two people who have lived together in a conjugal relationship outside marriage for at least one year.^[NaN] So if the daughter's partner of several years offered to witness, the answer would be no. A neighbour or a friend from the widow's church group, with no link to the attorney, would be a better fit.

No passing the role along #

Families sometimes picture the attorney delegating chores to a sibling or a cousin. The Act shuts that door. Section 3(3) says an attorney shall not appoint another person to perform the attorney's functions or to exercise the attorney's powers.^[NaN]

That has a practical upshot. If you want someone to step in when your first choice cannot, think about how to provide for that yourself while you still have capacity, rather than relying on your attorney to arrange it later.

What the attorney owes: a trustee's standard #

The Act sets a high bar for the person you choose. Under s. 6(1), an attorney must generally exercise their powers in a way that protects your best interests, and an attorney who fails to do so is liable to compensate you for the resulting loss.^[NaN] Section 6(2) goes further and treats the attorney as a trustee of your property.^[NaN]

There is also a route to scrutiny. Under s. 10(1), where the donor is legally incapacitated, a person with an interest in the donor's estate, or another person the court permits, may apply for an order requiring the attorney to submit accounts for a transaction involving the estate.^[NaN] For an attorney, the sensible response is to keep receipts and a running record from the first day. For a donor, it is reassurance that someone can ask questions if things look wrong.

Changing your mind #

Plans shift, and the Act allows for that. Section 11(1) lets a donor revoke or terminate an enduring power of attorney at any time while the donor has legal capacity.^[NaN] Section 11(2) separately allows a donor with legal capacity to change the attorney named in the document.^[NaN]

That is what makes the Gander arrangement workable. Once the grandson turns 19 and has a few more years behind him, his grandmother can, while she has legal capacity, decide whether to change the attorney named. Our general article on revoking a power of attorney covers revocation in a broader Canadian frame.

Choices the Act leaves to you #

Because the statute is short, much of the shape of the document is up to the donor. A few points are worth deciding deliberately rather than by accident.

The first is timing. The Act recognizes a power of attorney meant to be used during a later incapacity as well as one meant to continue through it, so think about whether you want your attorney able to act from the day you sign or only once you can no longer manage.^[NaN] The second is limits. Section 5 gives effect to conditions and restrictions written into the document, so if you want the attorney to keep the family cabin or avoid selling particular investments without good reason, say so.^[NaN] The third is the people around the attorney. Since the attorney cannot hand the role to someone else, it helps to tell a second family member where the original is kept and who is acting, so the arrangement does not depend on one person's memory.

Health decisions and the rest of the plan #

An enduring power of attorney deals with your property and finances. Decisions about your health care treatment are handled differently in this province, through an advance health care directive under the Advance Health Care Directives Act.^[NaN]

When the paperwork is done #

With the biscuit tin closed again, the widow had a shorter list than she expected: the daughter as attorney, a neighbour lined up to witness, and a reminder in her calendar to talk with her grandson again. Her will was the piece she wanted to look at next. Our guide on writing a will in Newfoundland and Labrador explains the formal requirements, our page on probate fees in Newfoundland and Labrador describes what the estate may pay, and the probate fee calculator can estimate a figure from your estate's value. The Newfoundland and Labrador will hub gathers the remaining provincial pages.

If your own planning has reached the same point, It's Simple Will can walk you through your will.