Power of Attorney in PEI: Enduring Powers Under the Current Act

A 66-year-old retired bank teller in Summerside started her power of attorney not with a form but with a sheet of lined paper. On it she listed the things she cares about: keep the house as long as it makes sense, keep paying the monthly envelope to her parish, keep helping her granddaughter with university, and keep her son, who works rotations in Fort McMurray, in the loop even though he is away three weeks at a time. Her daughter-in-law, ten minutes up the road, would be the one handling day-to-day matters. Sitting with both of them on a video call one Sunday evening, she asked whether any of the list belonged in the legal document or only in a letter.

On Prince Edward Island, quite a lot of it can go in the document itself. The Powers of Attorney and Personal Directives Act invites the person making one (the principal) to set out values, wishes and instructions alongside the appointment.^[NaN] The national power of attorney for property guide shows where the Island sits among the provinces.

Who can make one, and what "enduring" means here #

The Act defines an adult as someone 18 or older (s. 1), and s. 5 lets an adult who understands the nature and effect of a power of attorney make one.^[NaN] It must be in writing (s. 6(1)), and if a form is prescribed, using it is not mandatory (s. 6(2)).^[NaN]

The enduring part comes from the definition in s. 1. An enduring power of attorney is one that provides either that the attorney's authority is not ended by the principal's later incapacity in respect of financial matters, or that the power of attorney takes effect on that incapacity.^[NaN]

Why the distinction matters becomes clear in s. 14(1)(d): an attorney's authority generally ends on the principal's incapacity unless the power of attorney is an enduring one.^[NaN] For anyone planning ahead, the enduring wording is the whole point. Our piece on enduring and springing powers of attorney explores the choice between a document that works right away and one that waits.

Room for your own values and instructions #

This is the section that answered the Summerside question. Section 8 confirms that a principal may include or provide for any of these:^[NaN]

• information about the principal's values, beliefs and wishes;
• the effective date, or the circumstances in which the document takes effect;
• whether it continues on the principal's incapacity;
• instructions on making decisions under it;
• people who may request an accounting or other information about the principal's financial matters;
• people who may not receive that accounting or information;
• instructions for resolving disputes between the attorney and an agent named in a personal directive.

So the parish envelope and the granddaughter's tuition can sit in the document as stated wishes. The son in Fort McMurray can be named as someone entitled to ask for an accounting, which keeps him informed without making him the attorney.

Choosing the attorney, or attorneys #

Section 11(1) allows an adult with capacity to act as attorney, subject to the exclusions in s. 11(2).^[NaN] Those generally bar an individual who is an undischarged bankrupt, an employee of a facility where the principal lives and receives personal services or health care, or someone convicted within the last 10 years of an offence prescribed in the regulations (subject to an exception), as well as anyone who provides personal services or health care to the principal for compensation.^[NaN]

If you appoint more than one attorney, s. 7(2) says they act together, separately or alternately according to the direction in the document.^[NaN] Whatever arrangement you want, write it down.

Signing with one witness #

Under s. 32(1)(b), an enduring power of attorney is signed and dated by the principal in the presence of one witness, and the witness signs in the principal's presence.^[NaN] Some people choose to add a second witness, but the Act's requirement is one.

Section 32(3) lists who may not witness, or sign on the principal's behalf:^[NaN]

• a person named in the document as an attorney or agent;
• a family member of a person named in the document as an attorney or agent;
• an employee or authorized representative of a person named as an attorney or agent, unless that named person is a PEI lawyer, the Public Guardian and Trustee, or an institution allowed to do trust business on the Island;
• a person under 18;
• a person who does not understand the principal's way of communicating, unless they receive interpretive help.

In Summerside, that rules out the daughter-in-law, as the person named as attorney, and it also rules out a family member of hers. A friend from the parish or a former colleague from the bank would be a natural choice.

If the signing does not follow s. 32, there is a safety valve. Under s. 9(2), a court may, on application and on clear and convincing evidence that a written document embodies the principal's intention to create a power of attorney, order it to be fully effective.^[NaN] It is a court process, so careful signing is the better plan.

When it starts, and the notice of acting #

A PEI power of attorney generally takes effect on the latest of three dates: the day the principal signs, the effective date stated in it, and the date of any triggering event it describes (s. 10).^[NaN]

Section 12 adds a step that families tend not to expect. Unless the enduring power of attorney provides otherwise, the attorney gives a notice of acting, in line with s. 33, within a reasonable time after the principal's incapacity.^[NaN]

What the attorney must do #

Section 13(1) sets out the attorney's duties. Among them, the attorney must act honestly, in good faith and in the principal's best interests; involve the principal in decisions as far as possible; consider the principal's known wishes and, where the principal lacks capacity, how the principal managed their affairs while capable; use assets for the principal's benefit; keep the principal's property and money separate from their own, except as an enactment permits; and keep records of financial transactions.^[NaN] The list in the Act goes on past these, so treat them as the main ones rather than all of them.

A lined sheet of wishes, like the one from Summerside, gives an attorney something concrete to consider under that duty.

How it ends #

Section 14(1) lists ways an attorney's authority generally ends, including a date set in the document, the principal destroying or revoking it in writing while understanding what a power of attorney is and what revoking it does, the principal's death, the death or incapacity of the attorney, and the attorney's written resignation.^[NaN] The section continues beyond these.

Bringing the wish list and the will together #

Health care is not part of this document. Health care directives on the Island stay under the Consent to Treatment and Health Care Directives Act.^[NaN] And because the power of attorney generally ends on the principal's death, your will takes over from there.^[NaN] Our guide to writing a will in PEI sets out the formal rules, our page on probate fees in PEI explains the costs an estate may face, and the probate fee calculator can estimate them from your estate's value. The Prince Edward Island will hub collects the rest.

The retired teller's lined sheet ended up as three things: wishes written into her power of attorney, a note for her daughter-in-law, and a reminder that her will needed a fresh look. If yours does too, you can start your will with It's Simple Will.