The Default is a Person is Competent

All things ‘Powers of Attorney’ in Nova Scotia are governed by the recently updated Nova Scotia Powers of Attorney Act. The default is that a person is presumed to be capable of making a power of attorney. However, sometimes by the time a person, or their loved one, realizes a Power of Attorney document would be helpful, it’s uncertain whether the person has the required competence to make a Power of Attorney.

A Person Must Be Capable to Understand and Appreciate the Effect of a Power of Attorney

In short, a person is incapable of making a power of attorney if the person is incapable of understanding and appreciating the nature and effects of granting a power of attorney. The revised Act now gives us a list of criteria to consider when determining whether the person is capable or not.

Criteria to Determine Competence to Give Power of Attorney in Nova Scotia

The criteria to consider include whether the person understands and appreciates:

1. the type of property the person has and its approximate value;

2. the legal obligations the person owes to the person’s dependants;

3. that the person’s attorney will be able to do on the person’s behalf anything in respect of the person’s property and financial affairs that the person may lawfully do by an agent, subject to the conditions and restrictions set out in the power of attorney;

4. that the person’s property and finances, unless the attorney manages them prudently, may decline in value;

5. the possibility that the attorney could misuse the authority given to the attorney;

6. that the person may, if capable, revoke the power of attorney; and (g) that the person may not, if incapable, revoke the power of attorney.

While it is always fact specific, if the person wishing to grant Power of Attorney has trouble with any of these criteria, there is a real concern that may lack the required competence to draft a Power of Attorney. Legal advice should be sought to ensure any documents drafted will be legally binding and capable of doing what they were intended to do.

If you have any questions about power of attorney’s you can call us at (902) 826-3070 or email us at info@highlanderlaw.ca to set up a meeting with one of our lawyers at our Tantallon law firm. You can also schedule a no commitment Issue Review Consult for $250+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.  

By: Dianna M. Rievaj, MBA, LLB - Founding Lawyer

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Nothing contained on this blog is legal advice or constitutes a legal opinion. While it is our goal to provide information which is current, legislative changes and court decisions, among other matters, may result in some information no longer being current or accurate. You should consult a lawyer before relying on any information. The views expressed herein by individual contributing lawyers posting entries to the blog are solely those of the authors and should not necessarily be attributed to or considered representative of the firm of Highlander Law Group Lawyers