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There are several requirements that go into creating a valid power of attorney. It is important to consider what type of power of attorney you want. Knowing the rules can help you avoid issues in the future.
You can appoint an attorney under an enduring power of attorney (POA) if you:
Your attorney must be:
There are certain people who cannot be appointed to act under an enduring POA...
Other than these restrictions, you can name anyone you choose as your attorney. It can be a relative, friend, lawyer, or an officer of a bank or trust company. The person you choose can refuse to take on the responsibility, so it is important to discuss the matter with them first.
An enduring power of attorney must clearly state that you want it to continue if you lose capacity.
A POA must be in writing and be signed and dated by you.
For an enduring POA to be valid, it must be witnessed. It can be witnessed by a lawyer who has given you legal advice on the document. If a lawyer is not the witness, two adults who have capacity can be the witnesses instead. These witnesses cannot be a family member of either the attorney or the person granting the POA. Witnesses must complete a witness certificate in the form required by the legislation.
Enduring POAs can be witnessed using electronic means, such as Skype or Zoom, as long as the following requirements are met:
The Law Society of Saskatchewan has set out other requirements for lawyers to follow when witnessing a POA this way. These requirements are in place to prevent issues such as fraud, duress and possible lack of capacity to execute the document.
You do not need to use any particular form for a POA as long as you meet the requirements for a valid POA. There are templates that you can use however. These can be found on saskatchewan.ca.
A power of attorney is an effective planning document, but it should not be entered into lightly.
It is important to only appoint someone you trust under a power of attorney. There is always some risk involved when you give someone else the power to manage your affairs. The authority you give someone to act for you can be abused. Depending on the type of authority given, an attorney can do things like sell or mortgage property or decide where you should live. 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.
When deciding who to appoint, it is important to consider what kind of decisions you are authorizing them to make and in what circumstances.
Remember that, as long as you have capacity, you can still act for yourself. This includes ending the power of attorney. There are also tools in place to hold the attorney accountable.
You may want to consider appointing two or more attorneys. You can set it up so that one can act if the other is unavailable, or you can require them to make all decisions jointly. You can also appoint an alternate or successive power of attorney. Naming more than one power of attorney can act as a safeguard, but it can also lead to disputes and delays.
You may want to consult a lawyer about making a POA. A lawyer can help ensure that you understand the effect of a POA and help you consider what powers to include. They can also ensure that certain safeguards are in place.
Sometimes, financial institutions provide a POA form that gives a specific POA over funds held by that institution only. Unless this is the only POA you need, you may want to consider a single comprehensive POA to avoid confusion and disputes. A POA created later may cancel an existing POA, so it is very important to review and fully understand any documents you sign.
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