A "power of attorney" is a legal document whereby a person (the "Grantor") appoints and confers authority on another person to act on their behalf. The person so appointed or designated may be referred to as an attorney, a proxy, a mandatory, or a representative (herein referred to collectively as an "Attorney"), depending upon the relevant jurisdiction.
Generally, there are three types of powers of attorney recognized in Canada. The first is a "General Power of Attorney" that confers authority on an Attorney to manage the finances and property of a Grantor while the Grantor is mentally capable. If the Grantor becomes mentally incapable of managing their property, the General Power of Attorney comes to an end.
The second type of power of attorney is called a "Continuing or Enduring Power of Attorney" which allows an Attorney to go on acting for the Grantor if they become mentally incapable of managing their property. A person may become mentally incapable as the result of accidental injury or physical or mental disease. To be valid, this document must either be called a Continuing or Enduring Power of Attorney or state that it gives the Attorney the power to continue acting for the Grantor if they become mentally incapable.
The third type of power of attorney is the "Power of Attorney for Personal Care", also known as an Advanced Health Care Directive or Personal Directive. This power of attorney allows the Grantor to designate a substitute decision maker to make decisions regarding their personal care, such as health care, shelter, nutrition, hygiene and personal safety should the Grantor become mentally incapable to make those decisions.
II. Differences Between Canadian Provincial Jurisdictions
All powers of attorney are legislated provincially and the formalities required for a valid grant of power of attorney may differ from jurisdiction to jurisdiction. A power of attorney valid in one province may not be valid in other provinces unless the province's legislation recognizes valid powers of attorney from other provinces. It is important for a Grantor to identify and understand the laws governing validity of powers of attorney, particularly where they travel across provincial or international borders or own property in another jurisdiction and become mentally incapable to manage their affairs. If a power of attorney is not valid outside of the Grantor's home province, someone other than the person appointed as Attorney may have to make important decisions regarding personal care or property.
The following is a summary of the validity of Continuing or Enduring Powers of Attorney and Powers of Attorney for Personal Care across borders.
(a) Continuing or Enduring Power Of Attorney
Legislation in British Columbia, Québec, Prince Edward Island, New Brunswick, Nova Scotia and Newfoundland are silent as to the recognition of out-of-province Continuing or Enduring Powers of Attorney; therefore, it is important to ensure that a Continuing or Enduring Power of Attorney is valid in accordance with the requirements in these provinces if the Grantor owns any property located there. The remaining Canadian jurisdictions will recognize a Continuing or Enduring Power of Attorney executed elsewhere if it complies with the law of the place where it was executed and it is not terminated by the subsequent mental incapacity of the person making the power of attorney.
(b) Power of Attorney for Personal Care
All Canadian jurisdictions have legislation pertaining to Powers of Attorney for Personal Care except Nunavut. In Saskatchewan, Manitoba and the Yukon, an Advanced Health Care Directive will be recognized if it complies with the law of the jurisdiction where it is being used or relied upon, not the province where it was executed. In the Northwest Territories, a Personal Directive will be recognized if it was executed in another jurisdiction and a lawyer entitled to practice in that jurisdiction certifies in writing that the power of attorney meets that jurisdiction's requirements. In Ontario, a Power of Attorney for Personal Care will be recognized if it complies with the laws of the jurisdiction where (a) it was executed, (b) the Grantor was domiciled, or (c) the Grantor had his or her habitual residence. In Prince Edward Island, a Power of Attorney for Personal Care will be recognized if it meets the formal requirements of the (a) place where the power of attorney was executed or (b) place where the Grantor was habitually resident at the time it was executed. The legislation in British Columbia, Alberta, Québec, New Brunswick, Nova Scotia and Newfoundland is silent on this issue. It is important to ensure that a Power of Attorney for Personal Care is valid in accordance with these provincial requirements if a Grantor will be travelling to these provinces and would like to have a Power of Attorney for Personal Care recognized.
Special Consideration for Québec
In Québec, the Civil Code allows any person of sound mind to appoint a person who will ensure their well-being and the administration of property or assets in the case of incapacity. This document is known as a mandate in anticipation of incapacity. Should a Grantor become mentally incapable, this mandate must be verified by a Québec court before the Attorney can make decisions regarding the Grantor's care or property. A power of attorney that has been executed outside of Québec must meet provincial requirements and be verified by the court to be valid.
III. Validity of Powers of Attorney in the United States
Both Continuing or Enduring Powers of Attorney1 and Advanced Health Care Directives are legislated at the state level in the United States. Many States will recognize powers of attorney that are executed in other jurisdictions inside the United States, but are silent as to the recognition of international documents. To be valid, powers of attorney that have been executed in a Canadian jurisdiction should comply with the state specific formal requirements.
IV. What Happens if There is no Valid Power of Attorney
Important decisions about a Grantor's health care and property may be made by someone other than the Attorney if a power of attorney is not valid outside of the jurisdiction in which it was executed. Without a valid Power of Attorney for Personal Care, health care providers must turn to a hierarchy of substitute decision makers to make decisions regarding a person's care if they are mentally incapable to do so. The highest-ranking person on the following list who is available, capable and willing to make these decisions will become a person's substitute decision maker: spouse, adult child, parent, sibling, other relative by blood, marriage or adoption, or the Public Guardian. If there is a disagreement between equally ranking decision-makers that cannot be resolved, the Public Guardian may be asked to make the decision. Friends or family can also apply to a court to be appointed as the guardian of a person, who will become the highest-ranking substitute decision maker for health care decisions. For a person without a valid Continuing or Enduring Power of Attorney that becomes mentally incapable to make decisions regarding their property, the Public Guardian may become guardian of that person's property, or any person can apply to the court to become the guardian of property.
For anyone with a Continuing or Enduring Power of Attorney or Power of Attorney for Personal Care who plans on travelling, or who acquires property outside their home province, it is imperative to know whether such powers of attorney will be recognized in other jurisdictions. The formal requirements differ from jurisdiction to jurisdiction, and a lawyer should be consulted to determine these requirements and verify the validity of a power of attorney outside the Grantor's home jurisdiction. Without taking this precautionary step, important decisions regarding a person's care or property could be made by someone against their wishes if the unthinkable happens and they become mentally incapable of making decisions for themselves.
1. A Continuing or Enduring Power of Attorney is known as a Durable Power of Attorney in the United States.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.