Power of Attorney in Saskatchewan: Personal and Property Attorneys

A 63-year-old dental office manager in Moose Jaw had her power of attorney about two-thirds filled in when her older sister came by for supper. The plan, she explained while the potatoes boiled, was to have her nephew and his wife witness it on Sunday after church; they were reliable, they lived nearby, and they had already said yes. Her sister read the draft over her shoulder and asked a quiet question: "Does a nephew count as family?"

In Saskatchewan, it does, and that one detail would have undone the Sunday signing. The Powers of Attorney Act, 2002 has a wider idea of "family" than many people expect, a two-track system for witnessing, and a default that gives one attorney authority over both personal and property matters. This guide covers each of those Saskatchewan features. If you would like the wider Canadian context first, read our overview of property powers of attorney across the provinces.

One document, two kinds of authority #

Saskatchewan lets a grantor appoint a personal attorney, a property attorney, or both (s. 4.1(1)).^[NaN] The surprise for many readers is the default in s. 4.1(3): for documents granted on or after the day that section came into force, an attorney appointed under an enduring power of attorney is generally both the personal and the property attorney unless the document says otherwise.^[NaN]

"Personal" here means personal matters that are not health care. Health care decisions are handled separately, under The Health Care Directives and Substitute Health Care Decision Makers Act, 2015.^[NaN] Our general explainer on powers of attorney for personal care describes how that kind of decision-making works in Canada.

If you want one person handling your finances and someone else handling personal matters, the document needs to divide the roles. Otherwise the default does it for you.

Who can grant it and who can act #

Any adult who has the capacity to understand the nature and effect of an enduring power of attorney may grant one (s. 4).^[NaN] The authority survives a later loss of capacity when the document provides that it is not terminated by that loss (s. 3).^[NaN] A prescribed form exists, but under s. 5 using it is not mandatory.^[NaN]

Section 6(1) sets out who generally may not act as attorney:^[NaN]

• an individual under 18 or without capacity;
• an undischarged bankrupt, if appointed as a property attorney;
• subject to an exception in the Act, an individual convicted within the last 10 years of certain criminal offences, including assault, sexual assault and other acts of violence, intimidation, criminal harassment, uttering threats, theft, fraud or breach of trust;
• a person whose occupation or business involves providing personal care or health care services to the grantor for pay.

If you name more than one attorney and the document does not include the statement the Act describes in s. 7(2)(b), s. 7(3) deems them appointed to act jointly.^[NaN]

Starting now or starting later #

Under s. 8.1, an appointment generally takes effect when the enduring power of attorney is executed.^[NaN] Section 9 lets the document instead set a future date or a contingency, including the grantor's loss of capacity.^[NaN]

For a contingent appointment, s. 9.1(1) allows the document to name one or more adults whose written declaration is treated as proof that the contingency has happened. One limit stands out: the declarant may not be the attorney or a family member of the attorney.^[NaN]

That rule shapes the choice in a practical way. A grantor who wants a contingent appointment needs at least one trusted adult outside the attorney's family circle, such as a long-time friend, a former colleague or a family doctor, who is willing to make that written declaration when the time comes. It is worth asking that person in advance and telling them where the document will be kept.

Signing, witnesses and the certificate #

Section 11(1) says the document is generally not valid unless it is in writing, dated and signed, either by the grantor or, at the grantor's direction, by an adult with capacity who is not the attorney or a family member of the grantor or attorney, in the presence of the grantor and a qualifying witness.^[NaN]

Section 12(2) then gives two witnessing routes:^[NaN]

1. The lawyer route. The document is witnessed by a lawyer and accompanied by a legal advice and witness certificate in the prescribed form. Under s. 12(4), the lawyer may witness by electronic means if they take reasonable steps to verify the grantor's identity and confirm the contents, and follow the Law Society of Saskatchewan's requirements.^[NaN]
2. The two-witness route. Two adults with capacity, neither of whom is the attorney or a family member of the grantor or the attorney, witness the document, and witness certificates in the prescribed form go with it.^[NaN] The non-lawyer certificate is Form E in the regulations.^[NaN]

That is where the Moose Jaw plan ran aground. Section 2(1) defines "family member" to include a spouse, son or daughter, a parent or guardian from childhood, a brother or sister, a grandparent, a grandchild, an uncle or aunt, and a nephew or niece.^[NaN] Her nephew is her family member, so he could not be one of the two witnesses. Two co-workers from the dental office, with no family link to her or her attorney, would sit comfortably outside the definition. And if the right people are hard to gather in one room, the lawyer route, including electronic witnessing under s. 12(4), is the other option the Act offers.^[NaN] Our dedicated piece on the Saskatchewan witness certificate explains Forms D and E in more detail.

Duties and fees #

Section 15(1) asks an attorney to act honestly, in good faith, in the grantor's best interests, and with the care that could reasonably be expected of someone with the attorney's experience and expertise.^[NaN] Under s. 15(2), the attorney is also expected, wherever possible, to take the grantor's wishes into account.^[NaN]

On payment, s. 17(1) generally bars an attorney from charging a fee unless the fee is set out in the document, a court has ordered one, or a prescribed fee schedule exists and the fee falls within it.^[NaN] If you want your attorney paid, saying so in the document avoids guesswork.

How it ends #

Section 19(1) lists ways an attorney's authority generally ends. They include a date set in the document, a written revocation by the grantor while the grantor understands what an enduring power of attorney is and what ending it will do, the grantor's death, the death or loss of capacity of the attorney, and the attorney's written resignation, among others.^[NaN] The list in the Act continues beyond these, so treat it as a sample rather than the whole picture.

A short Saskatchewan checklist #

Before the signing day, it helps to run through these points:

• Decide whether one person will be both personal and property attorney, or whether to split the roles.
• If you name two or more attorneys, decide whether they should be able to act separately and say so.
• Choose the lawyer route or the two-witness route, and check every witness against the family-member definition.
• Attach the right certificate for the route you choose.
• Set out any fee arrangement in the document itself.
• Make a health care directive separately if you want health decisions covered.

Your will is the other half of the plan. Our guide to writing a will in Saskatchewan explains the formal rules, and the Saskatchewan will hub lists the related pages. When you are ready to put your own wishes in writing, It's Simple Will is a place to start your will.