A power of attorney is a document in which a person (the "grantor") appoints another person (the "attorney") to act on his or her behalf in connection with his or her personal and/or property affairs.
A grantor may appoint a personal attorney, a property attorney, or both a personal and property attorney. A power of attorney may be general, covering all of the grantor's personal affairs (in the case of a personal attorney), all of the grantor's property affairs (in the case of a property attorney) or all of the grantor's personal and property affairs (in the case of a personal and property attorney), or it may be specific, limiting the attorney's authority to a specific purpose, such as the sale of a property on the grantor's behalf.
An enduring power of attorney is a power of attorney that states that it is to continue in effect even if the grantor becomes incapacitated.
There are two types of enduring powers of attorney:
- the first type takes effect immediately; and
- the second type comes into effect on a specified future date or on the occurrence of a specified event, such as when the grantor becomes mentally incapable, or when the grantor leaves the country for an extended period. This is a contingent power of attorney (sometimes called a "springing" power of attorney).
An enduring power of attorney can be made at any time if the grantor is at least age 18 and mentally competent. It must be:
- in writing;
- dated and signed by the grantor; and
- either witnessed by a lawyer and accompanied by a legal advice and witness certificate, or witnessed by two competent adults, other than the named attorney or a family member of the grantor or attorney, and accompanied by two witness certificates.
Powers of attorney are usually drafted by lawyers who have special expertise. However, if you cannot afford a lawyer or choose not to use one, approved forms are available:
- Enduring Power of Attorney Appointing a Personal Attorney (Form A);
- Enduring Power of Attorney Appointing a Property Attorney (Form B);
- Enduring Power of Attorney Appointing a Personal and Property Attorney (Form C); and
- Non-lawyer Witness Certificate (Form E).
An attorney can be an individual or a corporation. The attorney does not have to be a lawyer, and does not have to be a resident of Saskatchewan to act for someone living in Saskatchewan. He or she may be a family member, friend or other person.
Attorneys must be at least 18 years of age and mentally competent. A person is not allowed to act as an attorney if he or she:
- is an undischarged bankrupt (in the case of a property attorney);
- has been convicted within the last 10 years of a Criminal Code offence for an act of violence, theft, fraud or breach of trust (unless he or she is pardoned or, while the grantor has capacity, discloses the conviction to the grantor who consents to the person acting); or
- is in the business of providing personal or health care services to the grantor for compensation.
The grantor can appoint more than one attorney and give each specific powers or state that they are to act separately, together, or successively when dealing with his or her affairs.
Unless an enduring power of attorney states otherwise, two or more attorneys are deemed to be appointed to act jointly and their decisions must be unanimous. If one or more attorneys are unable to act, the remaining attorney or attorneys may continue to act.
A grantor may also appoint a corporate attorney (e.g. a financial institution) which must disclose its fees in writing to the grantor before the grantor signs an enduring power of attorney.
Saskatchewan recognizes enduring powers of attorney, including contingent enduring powers of attorney, made outside the province if the enduring powers of attorney are valid according to the law of the place where they were made.