Enduring Power of Attorney in Nova Scotia: A Family Guide

On a warm August afternoon in Antigonish, a 73-year-old retired nurse sat on her back deck with her husband and their daughter, a printed draft of a power of attorney between the lemonade glasses. She had settled on her daughter as her attorney months ago. What she wanted to sort out that day were the smaller questions. Could her husband be one of the witnesses? Could her daughter's partner, who was already offering to drive over for the signing? And should the document say anything about what happens if she ever cannot follow her own finances?

Those questions run straight into Nova Scotia's Powers of Attorney Act, as amended in 2010 and again in 2022.^[NaN] The Act has its own vocabulary: the donor is the person giving the authority, and the attorney is the person receiving it (the statute's word, which has nothing to do with being a lawyer). For the broader Canadian picture, our guide to powers of attorney for property compares the provinces. Here we stay in Nova Scotia.

The validity checklist in section 3 #

Section 3(1) is the heart of the Act for anyone making a power of attorney. A document is generally valid when all of the following are true:^[NaN]

• the donor has capacity;
• it is in writing and signed by the donor (or, in limited cases, by someone signing for the donor);
• it is dated;
• the donor has reached the age of majority;
• it is witnessed and signed by two people of the age of majority, both present when the donor signs, neither of whom is the attorney or the attorney's spouse, registered domestic partner, common-law partner or child.

Back on the deck, that answers both witness questions. The daughter's partner is out, because he is the attorney's partner. The donor's own husband is not on the s. 3(1)(d) list, which names the attorney's family rather than the donor's.^[NaN] Some families still prefer two witnesses with no family tie at all, simply so nobody can later question the signing.

If the donor cannot sign, s. 3(2) lets another person sign for them, at their direction and in their presence, provided that person is of the age of majority and is not the attorney or the attorney's spouse, registered domestic partner, common-law partner or child.^[NaN]

Capacity is presumed, and the test is spelled out #

Section 2A(1) starts from a presumption that a person is capable of making a power of attorney.^[NaN] Section 2A(2) then describes when someone is not. In short, the donor should be able to understand and appreciate what granting the power involves: what kind of property they have and roughly what it is worth, the legal obligations they owe their dependants, the breadth of what the attorney will be able to do, the risk that unwise management could reduce the value of their property and finances, the possibility of misuse, and the fact that they can revoke it while capable but may not be able to once incapable.^[NaN]

That final point is distinctive. Nova Scotia's list draws attention to the window in which a donor can still change course, which is one more reason to make the document while that window is wide open.

Spell out whether it continues #

The Act defines an enduring power of attorney as one that continues to be effective even though the donor has become incapacitated.^[NaN] Families should not assume any particular outcome by default. The safer course is for the document itself to say clearly whether the authority continues if the donor loses capacity.

The Act also lets the donor shape when the attorney may act. Under s. 8(1), an attorney generally may act at any time after the document is signed. Section 8(2) allows the document to limit that, so the attorney may act only once it has been determined that the donor lacks capacity for property and financial decisions, or when other stated circumstances exist.^[NaN]

If you choose the capacity route, s. 8(3) identifies who may make that determination: a person you designate in the document, or a medical practitioner if no one is designated or the designated person cannot or will not act, or another person named in the regulations. Under s. 8(4), you can designate anyone, including your attorney.^[NaN]

People who generally cannot be your attorney #

Section 9(1) lists people who may not act as attorney. They include anyone who lacks capacity, anyone under the age of majority, a person convicted of an offence involving dishonesty, an undischarged bankrupt, and a person who provides health care or support services to the donor for pay, unless that person is an immediate family member of the donor.^[NaN]

"Immediate family member" is defined in the Act as a spouse, registered domestic partner, common-law partner, adult child, adult sibling or parent.^[NaN]

The conviction and bankruptcy bars are not absolute. Under s. 9(2), such a person may still act if they have been pardoned, or if they tell the donor about the conviction or bankruptcy while the donor has capacity and the donor acknowledges it and consents in writing.^[NaN]

The duty of loyalty #

Nova Scotia frames the attorney's role around loyalty. Section 5(1) says the duty includes acting on the donor's directions, in the donor's best interests and in good faith, avoiding secret profits and conflicts of interest, and not acting for the attorney's own benefit or a third party's benefit without the donor's informed consent.^[NaN] Section 5(3) adds a standard of care: the judgement and care that a reasonably prudent person would use in comparable circumstances.^[NaN]

When the donor can no longer decide, s. 2B(1) gives the attorney an order of priorities. After consulting the donor where reasonable, the attorney follows any relevant instructions given while the donor had capacity; failing those, the donor's current wishes if they are reasonable; failing those, the decision the attorney believes the donor would make, considering the donor's values and beliefs; and only then, what the attorney believes is in the donor's best interests.^[NaN] Writing down your instructions and values while you can is the most direct way to steer that ladder.

Varying or revoking it #

A donor who has capacity can vary a power of attorney under s. 17(1) by making a variation that meets the s. 3 requirements, which means the same signing and witness formalities.^[NaN] Under s. 17(2), a donor can revoke it unless they cannot understand and appreciate the nature and effect of revoking.^[NaN]

Either way, s. 17(3) requires written notice to each attorney (and anyone else the regulations name), and s. 17(4) makes the change effective when notice is given or on a later date stated in the notice.^[NaN] If something went wrong at the signing, s. 18(1)(b) allows a court to declare a power of attorney valid even though it does not meet s. 3, but that is a court application rather than a routine fix.^[NaN]

Pairing it with your will #

A power of attorney deals with money and property while you are alive. Decisions about your personal care in Nova Scotia are made through a personal directive under a separate statute, the Personal Directives Act.^[NaN] And your estate is governed by your will, which is the document your executor works from; our guide to writing a will in Nova Scotia covers the formal rules, and our page on Nova Scotia probate fees explains how the province's probate fees are worked out. The probate fee calculator can give you a rough figure for your own estate, and the Nova Scotia will hub collects the rest of the province's material.

By the time the lemonade ran out in Antigonish, the plan was set: two neighbours as witnesses, a clear line in the document about capacity, and a note of her wishes for her daughter to keep. If the will is the piece still missing from your own plan, you can write it with It's Simple Will.