Understanding Power of Attorney in Saskatchewan

Canada is currently undergoing a demographic shift. The average age of Canadians has been on the rise for several decades and is predicted to continue trending older into the foreseeable future. Baby boomers (those born between 1945 and 1965) make up the largest segment of the current population. As of the year 2030, the last of the baby boomers will have reached retirement age (65). An aging population presents several societal challenges. How will our healthcare system manage the increased demand? How will various pension plans hold up? What does the future hold for young people and working aged taxpayers? Many of the challenges created by the demographic shift will require government driven systemic solutions. While such solutions are obviously of great importance, many are outside the ability of an individual to control in a measurable way.

An aging population also creates challenges regarding the day-to-day management of the financial affairs of individual citizens. People’s ability to maintain control over their financial lives may change with age. They may begin making plans for management of their estates if they become unable to do so. They may turn to a trusted person for help. This help is often facilitated by the granting of a “Power of Attorney”. Many people will be familiar with this term, perhaps having had experience with a power of attorney themselves. Adult children of aging parents are regularly granted powers of attorney. As the population continues to age, it is reasonable to expect that the use of powers of attorney will become more necessary and more common. With this being the case, it is important that powers of attorney are fully understood, both by those who grant the power and by those who accept the responsibility of acting as attorney.

Power of Attorney Basics

The term ‘Power of Attorney’ is often misunderstood, but can be broken down as follows. A power of attorney is created by the ‘grantor’. The grantor gives another person the power to act on behalf of the grantor according to certain terms that are set out in a written legal document. That person is called the ‘attorney’, whose ‘power’ is derived from the legal document.

In Saskatchewan, under The Powers of Attorney Act, 2002, there are multiple requirements that must be met before a person can legally be appointed as an attorney. Amongst other things, the individual must have reached the age of majority and must not currently be in a state of bankruptcy. Any person who is employed by the grantor for either health care or personal care services is precluded from acting as an attorney.

An attorney can be appointed to control the personal affairs of the grantor, such as where the grantor will live. This is a ‘personal attorney’. An attorney appointed specifically to control the grantor’s property and financial affairs, is a ‘property attorney’. These distinctions are important under Saskatchewan law. A grantor may appoint a single person as both personal and property attorney, or may choose to appoint two separate attorneys. More than one of each type of attorney can also be appointed. They can be given the power to act individually or be compelled to act jointly. Their power can begin at a specified date or only after the happening of a specific contingency. It can terminate when the grantor becomes incapacitated, or it can be ‘enduring’ (continue indefinitely until the death of the grantor, despite incapacity).

How does this affect me?

There are invariably a myriad of questions that arise when discussing this area of law. Some common questions include:

• When should power of attorney be granted?
• How do I ensure the legal document is properly executed?
• How does this fit into my estate plan or will?
• Which child should be granted power of attorney?
• How can family arguments be avoided or reduced?
• What happens if Mom or Dad can no longer make decisions for themselves?
• How will it affect things if my attorney lives part-time in the United States?
• Does my Saskatchewan power of attorney still have effect in other provinces?

Rest assured that if these or other questions are weighing on your mind, you are not alone; powers of attorney can be confusing. There is no one-size-fits-all solution! Enlisting the help of an estate planning professional, such as a lawyer, can be very helpful.

About McKercher LLP:

McKercher LLP is one of Saskatchewan’s oldest, largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made our firm rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2017). Integrity, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.