Eligibility and Restrictions for Acting as an Attorney (Power of Attorney) in Nova Scotia

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

Section 9 of the Powers of Attorney Act in Nova Scotia outlines the qualifications and restrictions for individuals acting as an attorney under a power of attorney. These provisions ensure that the person granted authority to act on behalf of the donor meets specific standards of reliability and integrity.

1. Ineligible to Act as an Attorney (Section 9(1))

A person may not act as an attorney if they fall under any of the following categories:

• Lack of Capacity (Section 9(1)(a)): The person must have mental capacity to understand and perform the duties of an attorney. If they lack capacity, they cannot act as an attorney.

• Age (Section 9(1)(b)): The person must have reached the age of majority (typically 18 years or older) to act as an attorney. A minor cannot be appointed.

• Conviction Involving Dishonesty (Section 9(1)(c)): If the person has been convicted of an offense involving dishonesty (e.g., fraud, theft), they are disqualified from acting as an attorney.

• Undischarged Bankruptcy (Section 9(1)(d)): If the person is an undischarged bankrupt, they cannot act as an attorney. A bankrupt individual may have limited legal standing to manage others' financial affairs.

• Providing Health Care or Support Services (Section 9(1)(e)): A person who provides health care or support services to the donor for compensation cannot act as an attorney, unless they are an immediate family member of the donor. This ensures that the attorney does not have a conflict of interest, especially in financial matters.

2. Exceptions to Conviction or Bankruptcy Restrictions (Section 9(2))

There are circumstances under which a person who has been convicted of an offense involving dishonesty or is an undischarged bankrupt may act as an attorney:

• Pardon (Section 9(2)(a)): The person has been granted a pardon for the conviction. If they are no longer legally hindered by the conviction, they may act as an attorney.

• Disclosure and Consent (Section 9(2)(b)): The person discloses the conviction or undischarged bankruptcy to the donor while the donor still has capacity. The donor must:

  • Acknowledge the conviction or bankruptcy in writing.

  • Provide written consent for the person to act as their attorney.

This allows for transparency and ensures that the donor is fully informed before consenting to the appointment.

3. Suspension of Authority (Section 9(3))

If an attorney becomes someone who falls under the disqualifications in Section 9(1)(c) or (d) (e.g., convicted of dishonesty or becomes undischarged bankrupt), the attorney’s authority is suspended. However, if the attorney meets the requirements in Section 9(2)(b) (disclosing the conviction or bankruptcy and obtaining consent), the suspension may be lifted, and the attorney can resume their role.

Summary

Section 9 ensures that only qualified individuals can act as an attorney, and it provides safeguards to prevent conflicts of interest, dishonesty, or mismanagement. Those with criminal convictions involving dishonesty or who are undischarged bankrupts are generally disqualified, but they can regain eligibility through a pardon or full disclosure and consent from the donor. Additionally, if an attorney falls into any of these disqualifying categories after appointment, their authority is suspended, but it can be restored if the appropriate requirements are met. This section helps maintain the integrity and trustworthiness of the role of an attorney in managing the donor's affairs.

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.