When Do I Need a Power of Attorney?


Lots of people ask this question when contemplating planning their estate. The answer is Now. The time to get an Enduring Power of Attorney (enduring on incapacity) is when you are in good health and have the capacity to execute the Power of Attorney.

Power of AttorneyThe Power of Attorney is often overlooked. The general assumption is that the Will is the most important estate planning tool. However, if you don’t have a valid Enduring Power of Attorney and you lose capacity, whether temporary or otherwise, your family will be exposed to further hardship.
Tedious tasks that may have previously seemed relatively easy could become very difficult.

Some banks and various agencies will refuse to work with friends or family members, unless they have a Court Order appointing the family member as representative. A representative is a substitute decision-maker who will be able to make decisions on behalf of the adult.

In this case, family members then must apply to the Court to be appointed as representative under the Adult Capacity and Decision-making Act of Nova Scotia. This can be a long, and often costly process, with things hanging in limbo for quite some time. The proposed representative (also known as the “Applicant”) must provide the Court with a Capacity Assessment completed by a qualified medical professional, an Affidavit, Vulnerable Sector Check for the proposed representative and any alternates, and a Representation Plan. It often takes a long time to gather all these items, and they can be very costly to prepare. Once the proposed representative receives a hearing date, the proposed representative must serve notice of the hearing on all interested parties. This includes the individual’s spouse, parents, children over 19 and siblings over 19. Once appointed, the representative must file a bond with the Court, to be held in trust, to ensure that the individual is protected if the Representative mismanages their finances.

If you have children, who would cover the cost of daycare during that time, or other important bills? What if your house must be sold to cover your medical costs, or time without work?

It can also be problematic if you only have one person named as Power of Attorney. For example, it is very common to appoint a spouse as Power of Attorney. However, if the spouse predeceases the individual and there are no alternate Attorneys named the Power of Attorney will not be valid. This brings the family members back to the same scenario of not having one at all.

According to the Legal Information Society of Nova Scotia, the average legal fees of a Representation Application are approximately $5,000.00 – $6,000.00. Gallant Law charges $150.00 plus HST for an Enduring Power of Attorney.

Contact Gallant Law with any questions or to get started on your Enduring Power of Attorney.