Power of Attorney in Manitoba: The Enduring Kind, Step by Step

A 72-year-old retired city bus driver in Brandon wrote two names on the notepad he keeps by the phone: his elder daughter, who lives across town, and below it his younger daughter, who teaches in Winnipeg. Over coffee one Saturday morning he turned the pad around to face them both. "I want you two to look after my money if I can't," he said. "Does it matter whose name is on top?"

In Manitoba, it can matter a great deal. The province's Powers of Attorney Act has a default rule for multiple attorneys that differs from several other provinces, and it is one of a handful of Manitoba-specific points worth knowing before you sign. This article walks through them in the order most families meet them. For the cross-country picture, the Canada-wide property power of attorney guide sets the provinces side by side.

Making the authority outlast incompetence #

In everyday use, a power of attorney lets someone (the attorney) act for the person giving it (the donor). What makes it "enduring" in Manitoba is set out in s. 10(1). The attorney's authority generally is not ended by the donor's later mental incompetence if the document:^[NaN]

• is in writing;
• is signed by the donor, or the donor acknowledges the signature, in the presence of a witness;
• is signed by that witness in the donor's presence; and
• states that it is to continue despite the donor's mental incompetence.

Leave out the continuation statement and the document may stop working at exactly the point the bus driver is planning for.

There is a capacity requirement as well. Under s. 10(3), an enduring power of attorney is void if the donor, at the time of signing, cannot understand the nature and effect of the document.^[NaN]

The order of names on the notepad #

This is the rule that answers the Brandon question. Section 17(1) lets a donor appoint any number of attorneys to act jointly or successively.^[NaN] Section 17(2) then supplies the default: if two or more are named and the document does not say which, they generally act successively, in the order in which they are named.^[NaN]

So if the bus driver writes his elder daughter first and says nothing more, she would ordinarily act on her own, with her sister stepping in only after her. If he wants both daughters involved in every decision, the document has to say they act jointly. Neither choice is wrong; the point is to make it on purpose. Our article on naming more than one attorney looks at how families weigh it.

Each person you name also has to be eligible. Under s. 16, an individual can be an attorney if, when the donor signs, they are an adult, mentally competent and not an undischarged bankrupt.^[NaN]

A witness from a defined list #

Manitoba asks for one witness, but not just anyone. Section 11(1) limits the role to people in specific categories, including a person registered (or qualified to be registered) to solemnize marriages, a judge or justice of the peace, a duly qualified medical practitioner, a notary public appointed for Manitoba, a lawyer entitled to practise in Manitoba, and members of the RCMP or a Manitoba police service.^[NaN] Under s. 11(2), the attorney and the attorney's spouse or common-law partner may not witness the donor's signature.^[NaN]

The Act also contemplates remote witnessing. Section 10.1(1) allows a person authorized under the regulations to witness, in the manner the regulations set, without being physically present with the donor.^[NaN] Our separate article on who can witness a Manitoba power of attorney goes into the witness list in more depth.

Choosing a start date or a trigger #

Not every donor wants the attorney to have authority from day one. Section 6(1) allows the document to come into force on a specified future date or when a specified contingency happens.^[NaN]

For a contingency, you can name one or more declarants whom the attorney may ask for a written declaration that the date or event has arrived (s. 6(2)), and the attorney can be one of them (s. 6(3)).^[NaN] If the trigger is your mental incompetence and you name no declarant, or the person named cannot or will not provide a declaration, s. 6(4) allows two duly qualified medical practitioners to act as declarant.^[NaN]

Picking a declarant is a people question as much as a legal one. Some donors choose the attorney, which keeps things simple. Others prefer a second set of eyes, such as the daughter who is not acting first, or a long-standing family doctor, so that the person who gains authority is not also the person who decides the moment has come. Whichever way you lean, talk it over with the people involved before you sign, so nobody learns of the role for the first time on the day it matters.

What the attorney takes on #

Manitoba ties the attorney's duty to the moment the donor becomes mentally incompetent. Under s. 19(1), an attorney who knows or ought reasonably to know that the donor is mentally incompetent generally has a duty to act for the donor during that time, if the attorney has acted under the document or otherwise accepted the role, and the document has not been terminated.^[NaN]

An unpaid attorney is held to a standard of ordinary good sense. Section 19(2) asks them to use the judgment and care that a person of prudence, discretion and intelligence would use in managing their own affairs.^[NaN]

Accountability comes through accountings. During the period when the duty to act applies, s. 22(1) requires the attorney to provide an accounting in respect of the estate on demand by anyone the donor named in the document as a recipient of an accounting, among other situations the section describes.^[NaN] Naming a second person, such as the daughter who is not acting, as someone entitled to an accounting is one way donors build in a check. For the attorney, a simple habit helps: keep statements, receipts and a short note of each larger decision in one place from the first day, so an accounting is a matter of gathering papers rather than reconstructing them.

Filing a copy with the Public Guardian and Trustee #

Manitoba offers an optional extra step. Under s. 12, either the donor or the attorney may file a copy of the enduring power of attorney with the Public Guardian and Trustee.^[NaN] Nothing in that section makes filing a requirement.

When the attorney's authority ends #

Section 13 lists the situations in which an attorney's authority under an enduring power of attorney generally ends.^[NaN] They include:

• the death of the donor;
• the attorney's death, bankruptcy or mental incompetence;
• the donor's bankruptcy, unless the document provides otherwise;
• the attorney renouncing the appointment and giving the donor notice;
• a court terminating the power of attorney;
• the appointment of a substitute decision maker for property under The Adults Living with an Intellectual Disability Act, or the Public Guardian and Trustee or another committee taking over the donor's estate by court order under The Mental Health Act.

If you later decide you want to cancel the document yourself, it is sensible to get legal advice on the right way to do it, so that your attorney and anyone relying on the document know where things stand.

Finishing the notepad list #

A power of attorney is about money and property. Health care decisions in Manitoba are made through a health care directive, a separate document under The Health Care Directives Act.^[NaN] What happens to your estate after you die is a matter for your will; our guide on how to write a will in Manitoba covers the formal rules, and the Manitoba will hub gathers the province's pages.

The bus driver ended the morning by adding one word beside his daughters' names: "successively." If you are ready to give your will the same attention, you can get started on it with It's Simple Will.