Understanding the Requirements for a Valid 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 critical legal document that grants an individual (the "attorney") the authority to make decisions on behalf of another person (the "donor"). For a POA to be legally valid, it must meet several key requirements. Let’s break down the essential conditions that must be fulfilled for a power of attorney to be considered valid in Nova Scotia.

Key Requirements for a Valid Power of Attorney (Section 3(1))

1. The Donor Must Have Capacity (Section 3(1)(a)) For a POA to be valid, the donor must be capable of understanding the nature and consequences of the document. If the donor is mentally incapacitated at the time of signing, the POA will not be valid.

2. The Power of Attorney Must Be in Writing and Signed (Section 3(1)(b)) The POA must be a written document, signed by the donor themselves, or in certain circumstances, by another person on their behalf. The document should also be dated to ensure clarity regarding when it was executed.

3. Age of Majority (Section 3(1)(c)) The donor must be at least the age of majority for the power of attorney to be legally binding.

4. Witnessing Requirements (Section 3(1)(d)) A POA must be signed in the presence of two adult witnesses who are not related to the attorney or the donor, and who are not the spouse, registered domestic partner, common-law partner, or child of the attorney. These two witnesses must be present when the donor signs the POA.

When the Donor Cannot Sign (Section 3(2))

There may be situations where the donor is unable to physically sign the power of attorney document themselves (due to disability or other reasons). In such cases, the POA can still be valid if the following conditions are met:

• The donor must be present when the document is signed.

• A person, who is not the attorney or the spouse, registered domestic partner, common-law partner, or child of the attorney, signs the POA on behalf of the donor at the direction of the donor and in their presence.

• The person signing on behalf of the donor must be of the age of majority and not have any personal conflict of interest in signing the document.

Conclusion

To ensure a Power of Attorney is legally valid, the document must meet specific criteria, including the donor’s capacity, proper signing procedures, and appropriate witnessing. In the case of an incapacitated donor, provisions are made to allow another individual to sign on their behalf, ensuring that the process remains accessible and legal even under challenging circumstances.

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.