Attorney’s Authority and Conditions of Activation in a Power of Attorney

Note this article provides legal information, not legal advice. Reading this article should not be construed as obtaining legal advice from Ross Estate Law.

A Power of Attorney (POA) is a legal document that grants an individual (the attorney) the authority to make decisions on behalf of another (the donor) regarding property and financial affairs. However, the exercise of this authority can be conditional, and certain circumstances must be met for the attorney to begin acting under the power granted. Here’s an overview of the conditions for when the attorney can exercise their authority in Nova Scotia:

1. When the Attorney Can Exercise Authority (Section 8)

General Rule (Section 8(1)): The attorney is typically authorized to exercise their authority at any time after the power of attorney is executed, unless otherwise specified in the document.

2. Conditions for Activation (Section 8(2))

A Power of Attorney may specify that the attorney can only exercise their authority in certain situations, such as:

• Lack of Capacity (Section 8(2)(a)): The attorney’s authority may be activated only when it is determined that the donor lacks the capacity to make decisions related to their property and financial affairs. This ensures that the attorney steps in only when necessary, such as in cases where the donor cannot manage their own financial matters due to incapacity.

• Other Specified Circumstances (Section 8(2)(b)): Alternatively, the power of attorney may specify other circumstances under which the attorney’s authority can be exercised, depending on the provisions set by the donor.

  
  

3. Who Can Determine the Donor’s Capacity (Section 8(3))

For the attorney’s authority to be activated based on incapacity, there needs to be a determination that the donor lacks capacity. This can be made by:

• Designated Person (Section 8(3)(a)): The power of attorney may designate a person to make the determination of the donor’s incapacity. This could be a trusted individual or medical professional.

• Medical Practitioner (Section 8(3)(b)): If no person is designated in the document or the designated person is unable or unwilling to act, a medical practitioner, as defined in the Medical Act or under the Regulated Health Professions Act, may make the determination of incapacity.

• Other Prescribed Person (Section 8(3)(c)): Regulations may also allow other specified individuals to determine the donor’s lack of capacity.

4. Donor’s Designation of Capacity Determiner (Section 8(4))

The donor has the flexibility to designate any person they trust to make the determination of their capacity, including the attorney themselves. This provides the donor with control over who can decide when they are no longer capable of managing their affairs.

5. Revocation of Attorney’s Authority (Section 8(5))

Once the power of attorney is activated due to the donor’s incapacity, the attorney’s authority can be revoked if:

• Regained Capacity (Section 8(5)(a)): The attorney believes, on reasonable grounds, that the donor has regained capacity and can once again manage their own affairs.

• Professional Determination (Section 8(5)(b)): A person authorized under Section 8(3), such as a medical professional, determines that the donor has regained capacity.

Conclusion

The power of attorney system is designed to protect the donor’s interests by ensuring that their attorney can only step in to manage their property and financial matters under specific conditions. The authority of the attorney can be triggered by the donor's incapacity, with clear guidelines on who can make the determination of capacity. Additionally, safeguards are in place to ensure that the attorney’s authority is revoked if the donor regains capacity. These provisions help balance the need for support with the protection of the donor’s autonomy.

Please note that the information provided in this blog post is for general informational purposes only and is not intended as legal advice. Reading this post does not create an attorney-client relationship, and the information shared here should not be relied upon as a substitute for professional legal counsel. If you require personalized legal advice regarding estate planning or any related matters, we encourage you to schedule a consultation with Ross Estate Law to discuss your unique circumstances.