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Creating and Ending a Power of Attorney

Overview

Who can I appoint as my power of attorney?

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. The attorney may be a family member, friend or other person.

The person who you appoint as your attorney must be:

  • At least 18 years of age;
  • Able to understand information relevant to the decisions they are being authorized to make; and
  • Able to understand the consequences of making, or not making, a decision they are being authorized to make.

Also, the person you appoint must not:

  • Be an undischarged bankrupt;
  • Have been convicted, within the last 10 years, of a criminal offence related to assault, sexual assault, other acts of violence, intimidation, criminal harassment, uttering threats, theft, fraud or breach of trust*; or
  • Work or have a business providing personal care or health care services.

* This person may be entitled to act they have been pardoned or the grantor acknowledges, in writing and while competent, that the grantor knows about the offence and consents anyway.

You can appoint more than one attorney to act jointly (together), severally (each assigned different decisions to make) or successively (one after the other).

The person you choose to appoint as your attorney can later refuse to take on that responsibility. So, you should talk to them about the appointment first.

You must trust the person you appoint as your attorney implicitly. If you have any doubts about the person's integrity, judgment, money management skills or ability to handle stress, you should not appoint them.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website and the Powers of Attorney for Adults webpage for more information.

Are there things I should consider when creating a power of attorney?

A power of attorney is an effective planning document but it should not be entered into lightly. There is always some risk involved when you give someone else the power to manage your affairs.

The Government of Canada's publication, What Every Older Canadian Should Know About: Powers of Attorney and Joint Bank Accounts, provides information that can help you consider and manage the risks (see page 4 & 5).

Please also see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

How do I create a power of attorney?

The forms for doing so are located in The Powers of Attorney Regulations, which can be found on the Publications Centre. Your signature on your power of attorney must be witnessed. It can be witnessed by a lawyer or two adults with mental capacity. The witnesses cannot be your attorney, a member of their family or a member of your own family. Each witness must complete a formal witness certificate. The witness certificate can be found on the website mentioned above.

A Power of Attorney Guide and Template are currently in development and will be posted once completed for your assistance.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

Do I have to hire a lawyer to prepare my power of attorney?

While it is always advisable to seek the advice of a lawyer before preparing or signing any legal document, you can prepare your own power of attorney. A lawyer can help ensure that you understand the effect of a power of attorney and help you consider what powers to include. The Law Society of Saskatchewan website has a Finding Legal Assistance feature that can help you find a lawyer in your area.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

When does my power of attorney take effect?

The power of attorney takes effect the moment you sign it, unless it says otherwise.

If a power of attorney states that it takes effect upon a specified date or occurrence, including your loss of mental capacity, then it is called a "contingent power of attorney."

If a power of attorney is not contingent and takes effect the moment you sign it, then you must decide whether you want it to become invalid if, and when, you later become mentally incapacitated. If you do not want the power of attorney to become invalid if you later lack mental capacity, the power of attorney must explicitly say so. Capacity means:

  • being able to understand information that is relevant to making the kind of decision in question.
  • being able to appreciate the consequences of making, or not making, that decision.

A power of attorney that continues in effect even if you lose mental capacity later on is called an "enduring power of attorney."

If your power of attorney is in effect and you are not incapacitated, then your attorney can make decisions related to the powers outlined in the power of attorney and so can you.

Unless your power of attorney states otherwise, an attorney under an enduring power of attorney is both your personal attorney and your property attorney.*

* If you granted the power of attorney on or after 2004.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

How do I end a power of attorney?

You can cancel your power of attorney by giving written notice of the cancelation to your attorney. However, before you can cancel your power of attorney, you must be able to understand the nature and effect of the power of attorney and the effect of ending it. As an aside, you should notify all businesses and agencies dealing with your attorney that you have cancelled the power of attorney.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

Are there any other circumstances that bring the power of attorney to an end?

Yes, there are several other circumstances that can invalidate your power of attorney:

  • your attorney provides their written resignation to you or, if you lack mental capacity, other attorneys named in your power of attorney (or, if there are no other attorneys, your most immediate and available family member);
  • a condition or date outlined in your power of attorney for bringing it to an end occurs or arrives;
  • you or your attorney dies;
  • you become mentally incapacitated (if your power of attorney is not an enduring one);
  • your attorney becomes mentally incapacitated;
  • your attorney no longer meets the other initial requirements (i.e. goes bankrupt);
  • you and your spouse separate or divorce (if your spouse was named your attorney);
  • the court appoints a personal or property guardian for you;
  • an "interested party" challenges your attorney in court and a judge revokes your attorney's authority;
  • you are certified incompetent, the Public Guardian and Trustee is notified of this fact and decides to take you on as a "dependent adult" client by signing an "Acknowledgment."

Please see the Public Legal Education Association of Saskatchewan (PLEA) website and FAQs – Ending a Power of Attorney for more information.

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