Click on a topic below to learn more.
This page gives general legal information. It is not intended to replace legal advice from a lawyer. If you need legal advice, it is a good idea to talk with either a lawyer in private practice, or Nova Scotia Legal Aid.
Sometimes an adult is not able to make significant health, personal care or financial decisions on their own. We say that they do not have capacity to make important decisions. This may be because of a brain injury, a disability, or mental health problems, or for other reasons.
People who cannot make important decisions on their own might need another adult to make some or all of those decisions for them. In those cases a family member or other caring person will sometimes apply to court to ask to be the adult's representative decision-maker or representative.
The Adult Capacity and Decision-making Act, which came into effect on December 28, 2017, gives the Supreme Court of Nova Scotia the power to appoint a representative for an adult who cannot make their own decisions. A representative may have legal responsibilities and duties related to part or all of the adult's finances, personal and health care. A representative may only make decisions the adult is not able to make on their own.
The new law replaces Nova Scotia’s Incompetent Persons Act, which allowed the court to appoint a guardian for an adult. A guardian made all decisions for the adult whether the adult had the ability to decide a matter or not.
Get more information about the Adult Capacity and Decision-making Act, and about being a representative decision-maker for an adult at novascotia.ca/just/pto/adult-capacity-decision.asp
Adult Capacity and Decision-Making Act – the Nova Scotia law that allows a judge to appoint a representative for an adult who is not able to make their own decisions.
Adult – In Nova Scotia, the age of majority (adulthood) is 19.
Assessor – An assessor is a doctor or psychologist, and with training, an occupational therapist, nurse, social worker, or other qualified health care professional.
Capacity assessment - testing by a health care professional (assessor) to find out if a person has the ability to make their own decisions
Capacity assessment report - A report prepared by a health professional (assessor) to explain whether an adult is able to make their own decisions. The report may also include information from other sources, like family and friends.
Representative - A person with legal authority to act for and make substitute decisions on behalf of another adult
Representation order - A Court order appointing a representative
Representation plan - A plan to manage the well-being and financial matters of an adult who cannot manage those matters for themselves.
Representation allows someone to be responsible for the personal and financial interests of an adult who is not able to make their own decisions. The person who applies for representation is called a representative. If an adult is unable to make significant health, personal care or financial decisions on their own, a family member or other caring person will sometimes apply to the court to be appointed as the adult's representative. Some people may refer to a representative as an adult guardian, delegate, or substitute decision maker, although these terms do not always have the same legal meaning.
The person for whom a representative is appointed is called an adult in need of representation. Only a judge can appoint a representative.
The law relating to adults who need a representative to help in decision-making used to be called the Incompetent Persons Act. The Incompetent Persons Act allowed the court to appoint an adult guardian. The Incompetent Persons Act has been replaced by the Adult Capacity and Decision-making Act, which took effect on December 28, 2017. The new law allows the court to make a representation order appointing a representative for an adult.
Guardianship orders made under the Incompetent Persons Act continue as representation orders. Guardians become representatives, and have the same duties and responsibilities as new representatives under the Adult Capacity and Decision-making Act.
Representation used to be called “guardianship”. This term has changed to encourage greater respect for adults who need help to manage their personal and financial interests.
A representative must use the least intrusive and least restrictive steps possible to help an adult in need of representation manage their affairs. This means that the representative must not interfere with the privacy and freedom of the adult in need of representation unless absolutely necessary.
An adult in need of representation is any adult who does not have the capacity to make their own decisions. Examples of when this might happen are when a person:
This section only deals with the representative decision-making for adults. It does not talk about child guardianship. In Nova Scotia, an adult is anyone over the age of 19 (the age of majority). All adults in Nova Scotia are presumed to have capacity unless there is clear evidence to prove this is not the case.
Capacity is the ability to understand information that is needed to make a decision and to understand the possible results of a decision. For example, for an adult to consent to medical treatment, they must understand the risks of either accepting or refusing treatment.
All adults are presumed to have capacity unless there is clear evidence to prove this is not the case. Adults have a right to make their own decisions. This includes the right to make decisions that friends or family might think are risky or unwise. Just because someone made a bad decision, or a decisions others might not have made, does not mean they do not have capacity to make their own decisions.
A person may have different degrees of capacity at different times. For example, an adult may have capacity to understand and agree to a simple medical procedure such as getting a flu shot, but may lack the ability to understand and make a decision about a more complex medical procedure such as a surgery. Another example is someone who has the capacity to make medical decisions, but not decisions related to managing their finances.
The way that an adult communicates does not determine whether they have capacity. An adult may need help from a translator, interpreter, family member, friend, or technology to communicate their wishes. This does not mean that they are unable to understand information or make a decision.
A representative for an adult is appointed by a Supreme Court of Nova Scotia judge. Before appointing a representative, a judge will hold a hearing to decide if an adult has the capacity to manage their own affairs.
Any adult can apply to be the representative decision maker for an adult who does not have capacity to make important decisions on their own. A court will only appoint a representative when a judge is sure that the adult needs one, and that the proposed representative:
To decide whether a person is suitable to be the adult's representative the judge will also consider:
The court can appoint a trust company or the Public Trustee as a representative. A trust company can only deal with a person’s finances.
For more information, contact the Office of the Public Trustee.
A court can appoint more than one representative to act together (jointly) or separately. If two or more representatives are appointed to act together, the representation order must include a way to resolve any disputes that might come up between the representatives when carrying out their duties.
A Court may appoint more than one representative to act together (jointly) or separately.
If two or more representatives are appointed to act together, then the representation order must include a way to resolve any disputes that might come up between the representatives when carrying out their duties.
When deciding if a representative should be appointed, the court will consider:
The legal process for appointing a representative is set out in the Adult Capacity and Decision-Making Act. A representation application takes time and is complicated and technical. If you want to apply to be a representative, it is a good idea to talk with a lawyer, even for a short time.
To be appointed as a representative, you must file an application with the Supreme Court of Nova Scotia. The forms you need are at the links below. The forms come from the Nova Scotia Civil Procedure Rules, which are the rules about forms and processes used at the Supreme Court of Nova Scotia.
You must file:
Instruction Sheets are on the Nova Scotia Courts website at courts.ns.ca/supreme_court/nssc_forms.htm.
You must also give the court these documents:
You can find the forms for a capacity assessment report and representation plan on the Public Trustee’s website novascotia.ca/just/pto/forms.asp under Adult Capacity and Decision-making.
When you have filled out all of these documents, take them to the court to be issued. This means that the court stamps them to show that they have been added to court records. The court will return an issued copy of the application documents to you. The documents must then be personally served (delivered in person) to the adult and anyone else who is a respondent on the Notice of Application. Once the application documents have been served, you, or the person who served the documents, must fill out an Affidavit of Service – Civil Procedure Form 31.05 under Rule 31.05, and file it with the court as proof of service.
You also need to make sure a copy of the Notice of Application is sent to other interested persons, including:
You must deliver the application documents to these people at least 25 business days before the date of the hearing. Remember to allow for the day when the documents are delivered or sent, the day of the hearing, weekends, or holidays.
If you are concerned that someone on the above list should not be given notice of the application ahead of time, you may ask the court for permission not to notify them. You should ask the court about it when you file the application.
The adult or any other person who might be affected by the application may not agree with your application. If they do not agree they may file a Notice of Contest (Chambers Application) with the court (Form 5.04 for Contesting an Application on Notice in Chambers, under Rule 5.04).
A Capacity Assessment Report can be prepared by a medical doctor or registered psychologist. They can also be prepared by nurse practitioners or registered nurses, occupational therapists, and social workers, after completing specific training. This training will be developed in 2018 by the Public Trustee’s office.
A representative may only do the things described in the representation order and in the court-approved representation plan. For example, a representation order may give a representative authority to make only a single decision on behalf of the adult, or the order might cover a number of decisions. The representative can only make decisions for the adult that the adult cannot make for themselves. A representative may have authority to manage finances, make health and personal care decisions for the adult in need of representation. An example of personal care decisions is which social activities an adult in need of representation will attend, or if the adult works, where and what type of work the adult will do.
A representative must:
A representative must not:
Going to court nearly always involves costs. These are listed below.
A lawyer will charge a fee to prepare a representation application and appear in court. This work will likely cost $5,000 to $6,000. Some lawyers may charge more or less. You can also contact Nova Scotia Legal Aid to see if you qualify for free legal help.
Court filing fee
It will cost $246.80 (December 2017) to file an Application with the Supreme Court of Nova Scotia. This includes tax and the cost of having the document issued (stamped) by the court.
If you are appointed as a representative, you must pay a bond (collateral) to the Supreme Court, to be held in trust. This is done so that the adult in need of representation is protected financially if you manage the adult’s money or property badly The bond will be equal to 1.25 times the value of any property the representative has control over.
If you cannot afford to pay the bond, you can get a guarantor or co-signer to help you pay the bond. This could be another friend or family member, or a surety company. You might not have to pay the bond if you are not granted authority over the adult’s financial matters, if there are other safety measures in place to protect the adult, or if the value of the adult’s property is worth less than $3,000.
Vulnerable sector check
It costs $50 to apply for a criminal record check/vulnerable sector check from the Halifax Regional Police. Contact your local police or RCMP detachment for information.
Most health professionals will charge a fee to do a capacity assessment report.
You may apply to the Public Trustee’s office for help paying some or all of the costs of a capacity assessment. You will have to show that it would be a financial hardship for the adult or you to pay for it. The government may pay up to $500 for an assessment for personal care or financial matters, or $700 for an assessment of both personal care and financial matters.
A representative must:
A representative must keep good records of all financial matters. If the representation ends for any reason, the representative must provide those records to the court. The court may also order the representative to produce those records or report to the court at any time.
Representatives must always protect the adult's privacy and personal information.
If a representative believes the adult’s ability to make decisions has changed the representative must have the adult’s capacity reassessed. A representative must apply to court to have the representation order reviewed if the adult's ability to make decisions changes.
The Nova Scotia government has a Guide to Applying for a Review of a Guardianship Order or a Representation Order. It is on the NS Public Trustee website.
The law says all adults have the capacity to make their own decisions, unless there is clear evidence to prove they cannot.
Adults have the right to:
An adult has the right to the least restrictive and least intrusive options. For example, adults should be offered support so they can make their own decisions whenever possible. An adult has the right to use whatever support they need to communicate or make decisions. This might include using an interpreter or having help from a friend, family member, or other support person.
An adult who is the subject of a representation application has the right to have a lawyer. If they cannot afford to hire a lawyer, they can apply to Nova Scotia Legal Aid, or call Legal Aid at 1-877-420-6578. In court, the adult has the right to speak to the court, to be at the court hearing, and to give information to the court. If the adult does not agree with the judge’s decision, they can appeal the decision at the Nova Scotia Court of Appeal.
An adult who needs a representative has the right to apply to the court to review the representation order if their ability to make decisions changes. For example, if an adult can again make their own decisions, they can apply to the court to have the representation order reviewed, and to remove their representative decision-maker.
You do not have to take part in a capacity assessment.
If you refuse to be assessed or decide to end an assessment in progress, the health professional must stop the assessment and notify the person applying for representation that you have decided not to be assessed. Only a court can order a person to participate in an assessment if they refuse to cooperate. Family members and friends cannot make an adult cooperate with an assessment.
However, if a health professional who has been trained as an assessor believes you may need a representive, the health professional can assess your ability to make decisions even without your cooperation. The assessor can use information from other sources like family and friends. The assessor can also ask for your personal health information. The assessor might need your financial information to write the assessment report. If so, the person who is applying to be a representative must ask the court for permission to get that information.
When a capacity assessment is done, the assessor must tell you the results and give you a copy of the report.
Representation ends when something important changes for the adult who has a representative, or for the representative.
Representation ends when the adult who has a representative decision-maker dies or regains capacity to make their own decisions.
Representation can also end if the representative is not able to do their job because they:
If a representative dies, becomes incapable, refuses to act, or is unable to act for any reason, a judge will appoint a new representative if the adult still needs one. If there is no alternate representative able and willing to act, the Public Trustee may act as representative until another can be appointed.
If a representative wants to resign, they must apply to court to ask to be removed from the representation order.
If an adult regains the ability to make decisions, they can apply to the court to have the representative removed. If an adult regains capacity, the representative has the responsibility to apply to court to ask the court to review the representation order and to tell the court of the change in the adult’s capacity. If the review is successful, the representative must provide financial records to the Court and return all possessions to the person who has regained capacity.
Anyone who has concerns about a guardian, representative, or adult who has a representative decision-maker can apply to the Supreme Court of Nova Scotia for a review hearing. You can do this if you are an appointed guardian or representative, or an adult who has a representative decision-maker, or a family member or friend.
Some examples of reasons to ask the court for a review are:
For more information, see the Guide to Applying for a Review of a Guardianship Order or a Representation Order on the Nova Scotia Public Trustee website.
You can complain to the Public Trustee if you think that a representative is not doing their job right. Anyone can also complain to the Public Trustee if they are concerned about the decisions of a guardian under the Incompetent Persons Act. The Public Trustee will look into the complaint and may refer the matter to other agencies, such as police or the Department of Community Services.
You can complain to the Public Trustee if you think that a representative is not doing their job right. Anyone can also complain to the Public Trustee if they are concerned about the decisions of a guardian under the Incompetent Persons Act. The Public Trustee will look into the complaint and may refer the matter to other agencies, such as police or the Department of Community Services.
Anyone who has concerns about a representative may also apply to court to have a representation order reviewed. See the Nova Scotia government's Applying for a Review guide for more information.
As a representative, you may be paid for out-of-pocket costs related to carrying out your duties. This money comes from the money or property of the adult you represent.
You may also ask the court to approve taking a fee from the adult’s money or property. You should know that no pay may come from government benefits or support paid to the adult.
You must ask the court to include this compensation when you apply to become the adult’s representative. The court may order up to $15 per hour for managing health care or personal care matters. If you are managing financial matters, the court may allow you to receive up to 2.5 percent of money the adult gets (for example interest earned) while you are their representative.
Sometimes when a person can no longer make their own decisions, someone else will be able to help them. This person is usually a spouse, adult child, or other close family member, or even a close friend.
Informal arrangements work for many people. If the adult has real estate has real estate or financial assets that need to be managed, though, there can be problems. For example, in an informal arrangement, you will not be able to deal with investments unless the person has appointed you as attorney in an enduring power of attorney. For more information, see the section on Powers of Attorney.
Yes. While you have capacity to make decisions, you can arrange for someone to manage your financial affairs. This legal document is called an Enduring Power of Attorney.
You can also arrange for someone to manage your health and personal care if you lose capacity and are unable to make your own decisions. This legal document is called a Personal Directive.
Reviewed December 28 2017
Are you dating, moving in with a new partner, or thinking about getting remarried, perhaps following a separation, divorce or death of a spouse?
This is a good place to start for answers to some of the questions you may have in entering a new relationship.
Asset – A legal term for property. This can mean anything of value, such as a house, vehicle, or bank account.
Cohabitation agreement – A contract between common law spouses which sets out the details of property ownership, how property will be divided upon separation, and any support obligation between the spouses.
Common law relationship - A common law relationship occurs when two people live together in a 'marriage-like' relationship. This means that they are not married but they share a home, refer to themselves in public as spouses or partners, and share things like bills and other finances.
Consent - Before engaging in sexual activity with someone, the law requires that you take reasonable steps to be sure the other person agrees freely.
Joint tenancy – Joint tenancy means that two or more people own property together, such as a house or bank account. The owners have equal right to use and control the property. If one owner wants to sell the property, any other owners must agree.
Marriage contract – A contract between legally married spouses which sets out the details of property ownership, how property will be divided upon separation, and any support obligation between the spouses.
Registered domestic partnership – Any two people who are living in a common law relationship can register their relationship with the province as a registered domestic partnership. This gives common law partners many, but not all, of the same rights as married spouses.
You can find more information on registered domestic partners at https://novascotia.ca/sns/access/vitalstats/domestic-partnership.asp.
Tenancy in common – A tenancy in common means that two or more people each own part of a shared asset. Their shares may not have the same value. Each owner can use their share how they like or sell it without permission from any other owner.
While dating and meeting new people is fun, there are fraudsters who try to take advantage of these situations. Until you get to know your new friend better, here are some things you can do to protect yourself:
There are thousands of internet chat rooms and dating sites. You can also download dating apps on a tablet or smartphone. Many people meet romantic partners online, but you should be aware of the possibility that someone you meet online may not be who they say they are. A fraudster may create a fake online identity to trick someone into providing personal information. This is called “catfishing”.
Here are some things you can do to protect yourself:
Many public libraries and community centres in Nova Scotia offer free computer courses which can help you learn more about using technology and the internet.
When starting a new relationship, it is important to make sure both people are open and honest about what they are looking for in a partner. Some people may be interested in starting an intimate relationship, while others may be looking for companionship and nothing more.
Words or actions can show that a person does not consent to sexual activity. Actions like struggling or trying to leave show that a person does not consent. Anyone is entitled to say no to any activity at any time. Agreeing to sexual activity on one occasion does not mean that a person has agreed to engage in that activity again in the future. Someone who is intoxicated may not be able to consent.
If you are thinking about engaging in sexual activity with a new partner, you may wish to discuss safe sex with your partner, your doctor, or another person you trust, or do some research online. Rates of sexually transmitted infections (STIs) among seniors in Canada have risen in recent years, but you can take steps to protect yourself.
No. Dating someone does not give them any rights to your assets. You do not have to support each other financially.
Being in a common law relationship is not the same as being legally married. For instance, you will not have an automatic right to half of one another’s property if you separate or if one of you passes away.
The length of time required to establish a common law relationship varies. For example, the Canada Pension Plan says that to be a ‘common law partner’ you must live with your partner for at least one year. Some other laws do not consider you to be in a common law relationship until you have lived with your partner for two years.
If you live with a partner and depend on them for financial support, they may have a legal duty to support you if the relationship ends, but there is no guarantee that this will be the case. Generally, when a common law relationship ends, each partner is entitled to keep what they brought into the partnership. Assets that have been purchased together should be split equally. However, in real life, it is not always easy to sort out who paid for what.
If you and your former partner cannot agree on how to split up your property when you separate, you may apply to the court for a court order to divide the property. In every case, former common law partners should have legal advice involving common law property division.
If you die without leaving a will, your common law spouse may not receive any of your property. Your property is distributed to the people considered to be your nearest blood relatives as set out in the Intestate Succession Act. Your common law spouse would have to apply to the courts for financial support. For more information on wills, see the section Wills. Common law spouses are not included on the Intestate Succession Act distribution list unless they have a registered domestic partnership.
If you plan to move in with your partner, you should talk to a lawyer about how this might change your situation.
You both do. If you and your partner buy something together, such as furniture or a car, you both own it. If you bought something on your own, it remains your property. Make sure you keep proof of payments (such as receipts) and indicate who paid for the item. You may want to include them in a cohabitation agreement.
The best way to protect your property if you move in together is to ask your lawyer about a cohabitation agreement. This is a written agreement between you and your partner that sets out your rights and responsibilities to each other. This can include who owns the property, how property will be divided if you separate, and your support obligations.
If you decide to get married, you could have a marriage contract. This is an agreement between two married people that sets out who owns what property. This type of contract is often called a pre-nuptial agreement, or “pre-nup” for short.
You need a lawyer to write your cohabitation agreement or marriage contract. Your lawyer will explain how your agreement or contract will affect your rights and responsibilities. You should each talk to a different lawyer.
Many couples keep some of their money separate by having their own personal accounts as well as a joint account. They use the joint account to pay household bills and joint purchases.
There are two types of joint accounts. A joint account with tenancy in common is an arrangement where each person on the account has a share of the money in the account. The shares do not have to be equal. When you separate or divorce, your share is protected and is yours to take with you. If you die, your share is left to your beneficiaries. This type of joint account is subject to probate tax when an account holder dies.
The other type of joint account is a joint tenancy. This means the account holders each have an equal right to use and control the money in the account. When you separate or divorce, the money must be divided equally, even if one person contributed more or less than the other. When one of the owners dies, the remaining owner automatically owns the deceased person’s portion of the assets. This is called right of survivorship.
Joint tenancy is the most common type of joint account for most couples. Unless you instruct your bank otherwise, it will assume that a jointly held account is a joint tenancy. This can lead to problems when a relationship breaks up if one of the account holders takes all of the money out of the account.
Account holders do not have to be related, but often they are spouses or partners, or a parent and child.
The Financial Consumer Agency of Canada has more information information about Joint Accounts, including a publication called "What every older Canadian should know about: Power of attorney (for financial matters and property) and joint bank accounts"
Pension benefits may be regulated provincially or federally. Your pension plan will be governed by federal laws if you work or worked in a federally regulated industry such as banks, interprovincial communications, and interprovincial transportation. Employees of the provincial government, teachers, and federal public-sector employees are covered by separate acts relevant to their pension plans.
When you die, any benefits payable from a pension plan, locked-in retirement account, or life income fund will be automatically payable to your spouse or common-law partner. If your marriage or common law relationship ends, your pension funds may be divided with your partner. This applies if your marriage or common-law relationship ends while you
The Nova Scotia Pension Benefits Act defines spouses as:
You can read more about pension benefits at https://www.novascotia.ca/finance/en/home/pensions/default.aspx.
Your partner is entitled to your pension death benefit if they qualify as a spouse under the provincial or federal law that regulates your pension. If you do not have a spouse when you die, the death benefit will be paid to the person listed with your pension regulator as your beneficiary.
Whether you are married or in a common law relationship, you are only responsible for another person’s debts if:
However, if your spouse applies to the court for a division of debts after you separate, the court may order you to contribute if you can.
When a person dies, their debts must be paid from any assets they owned at the time of death. This can include that person’s share of a jointly owned asset. If they did not own enough property to pay off the debt, it must be written off by the lender.
You should look at your will regularly to make sure it is still what you want and that it still applies to your situation.
If you get divorced, your will as a whole is still valid, although any gifts to your ex-spouse will not be valid. In this instance, the gift will pass to any alternate beneficiary you have named. You may wish to update your will to reflect this change. You may also wish to make different arrangements for your beneficiaries if some of the property you intended to leave them has been divided with your ex-spouse.
If you get married, any will made before marriage will be invalid and you will need to make a new will.
You should not try to change your will by marking in or crossing out words. This may cause significant problems. It is much safer to make a new will. For more information, see the section on Wills.
Probate is a legal process that establishes that a will is the valid last will of the person who died. It is also the process that governs management and distribution of an estate, whether or not there is a will. A grant of probate or administration is a document from the Probate Court that gives a personal representative legal authority to deal with the estate.
Nova Scotia’s Probate Act and regulations outline the rules for probating an estate.
A person who makes a will is called a testator. If you die without a will, you are said to die intestate.
Nova Scotia’s Probate Act uses the term personal representative to refer to both an executor and an administrator of an estate.
An executor is a person or corporation named in a valid will to carry out the terms of that will.
An administrator is a person appointed to look after the estate of an individual who dies without a will – that is, a person who dies intestate, or who had a will but did not appoint an executor. There is a list in the Probate Act of people who are entitled to apply to court to administer an estate. A surviving married spouse and adult children living in Nova Scotia are at the top of the list, followed by adults who live in Nova Scotia and who are entitled to a share of the estate under the Intestate Succession Act. The Intestate Succession Act is the provincial law that applies when someone dies without a will.
Generally, an estate is everything a person owns when he or she dies. There are some things that would not be part of an estate. For example, real estate owned as ‘joint tenants’ with another person, joint bank accounts, and some forms of investments (like RRSPs or RRIFs) or life insurance policies that specifically designate (name) someone as beneficiary.
An estate may include:
• real property, like land or a house, that was only in the name of the person who died, or that was owned as ‘tenants in common’ with others; and
• personal property, such as money, vehicles, jewellery, artwork, clothing, household furnishings, and other personal effects.
No. If you do not want to be Executor tell your family member or friend at the time the will is being written.
If the person who wrote the will has died, you are still allowed to renounce, which means resign or step down, if you do not wish to act as the Executor. To renounce you would need to contact the Probate Court and fill out a form giving up (renouncing) your right to be Executor, and confirming that you have not intermeddled in the estate. Intermeddled basically means interfering with the estate, or doing things that show you've taken on the job of managing the estate. If you do not wish to be Executor it is best to step down before you take any steps to deal with the estate.
You do not need any specific skills or experience to be an Executor, although it helps if you have some business knowledge. It does require time and attention. In some cases, for example - a will that involves a trust fund for children, it can include responsibilities that may last for years. Also, as an executor you can be held legally responsible for any errors or omissions you make in dealing with the estate.
In some situations, an executor’s job is straightforward and relatively simple. In other cases it can be very complex. It depends on the size of the estate and other factors, including:
You are not required to hire a lawyer. You are allowed to go to Probate Court and file the necessary papers without a lawyer. However, you should consider the complexity and size of the estate when deciding if you are able to handle the interpretation and distribution yourself. You may be held personally liable if the duties are not carried out properly. Click here for ways to find a lawyer, if you decide to hire one.
The Probate Court provides information, including check lists and forms, for personal representatives who are dealing with an estate without a lawyer. Visit courts.ns.ca and look under ‘Probate Court’ and ‘represent yourself’, or look under ‘courts’ in the government section of the telephone book for probate court locations.
A personal representative’s duties will vary depending on the complexity of the estate. As an estate’s personal representative you should keep very accurate and detailed records. If you are concerned about whether you are fulfilling all your duties as personal representative, you should speak with a lawyer.
Some of the duties you may have as an estate’s personal representative are listed below:
The new Probate Act gives you:
Before the estate can be distributed to the beneficiaries, you must advertise in the Royal Gazette that the deceased’s estate is being probated, and that creditors who may have a claim on the estate should come forward. This advertisement period lasts for 6 months. The Royal Gazette, Part 1, is Nova Scotia's official government record of proclamations and other required legal notices. For more information about the Royal Gazette, and fees for placing an estate notice, go to gov.ns.ca/just/regulations/rg1/index.htm or call (902) 424-8575.
The estate’s debts, including taxes, must be paid before assets are distributed to beneficiaries. If you distribute assets before all debts are paid, you may be personally liable for those debts.
Yes, there are circumstances under which the Probate Court may remove an estate’s personal representative and appoint another person in his or her place. Under the new Probate Act the Court must be satisfied that a personal representative’s removal would be in the best interests of the persons interested in the estate. The Act sets out specific reasons for removal, including if the personal representative:
1. fails to comply with a court order;
2. becomes insolvent or mentally incompetent;
3. neglects to administer the estate;
4. wastes the estate;
5. is convicted of theft and/or fraud offences under the Criminal Code of Canada.
A Personal Representative may also apply to Probate Court on his or her own behalf to be allowed to step down from his or her duties.
The Probate Court may allow you a commission of up to 5% of the value of the estate, unless the will states otherwise. This is above and beyond any out-of-pocket expenses you may have had while carrying out your responsibilities. The amount of the commission is based on the complexity of and work involved in probating the estate, the success of the estate under your management, as well as other factors.
Probate forms are available from your local Probate Court, listed under ‘Courts’ in the government pages of the telephone book, or visit www.courts.ns.ca for probate court locations and contact information.
Last updated: September 2017
Elder Abuse includes both abuse and neglect. Special provisions are made for dealing with elder abuse through the Adult Protection Act.
These questions and answers provide general information only. They are not meant to replace legal advice from a lawyer.
You'll find more answers to your questions about abuse of older adults by clicking on the Elder Abuse Awareness image below:
Abuse can be:
Neglect is the failure to provide adequate food, medical attention, shelter, or clothing to an adult. Neglect may also be self-neglect where an adult lives alone and cannot adequately care for him or herself, but refuses help.
An adult in need of protection is someone who is 16 or older and who:
The Adult Protection Act is a provincial law that provides protection to adults in need of protection. It does not protect against financial abuse. The Adult Protection Act places a duty on everyone to report the abuse or neglect of such an adult.
The Protection of Persons in Care Act safeguards patients and residents in Nova Scotian hospitals, residential care facilities, nursing homes, homes for the aged or disabled persons under the Homes for Special Care Act, or group homes or residential centres under the Children and Family Services Act. Health Facility administrators and service providers (including staff and volunteers) are obliged to promptly report all allegations of abuse under this act.
Even if you hear about adult abuse confidentially, you must report it. For example, a doctor must report information he or she receives about abuse or neglect of an adult in need of protection.
The identity of people who report abuse is confidential, unless that person is asked to give evidence in court.
The Department of Health enforces the Adult Protection Act through its Adult Protection Service , as well as the Protection of Persons in Care Act. After abuse is reported, the Adult Protection Service may visit the adult's home, and talk to those involved. In the case of the Protection of Persons in Care act, an investigator is sent to the premises. If the Adult Protection Service finds evidence that the adult is in need of protection, the worker may offer services to the adult. If there has been a criminal offence, the Adult Protection Service must report to the police. The Adult Protection Service may remove an adult from the home if there is evidence that the adult's life is in danger, if he or she is being pressured not to accept assistance, or if he or she is unable to decide whether to accept assistance.
In addition to steps taken by Adult Protection Services to protect a senior, the Nova Scotia Public Trustee’s Office looks into reports of abuse related to abuse of older adults by their representatives. A representative is someone with legal authority, by court order, to act for an adult who is unable to make their own decisions. This authority is granted by the court under the Adult Capacity and Decision-making Act.
A representative must act in the best interest of a person in need of representation. The representative is only permitted to do the things described in the representation order made by the court.
If you believe a representative is misusing their authority, you can submit a complaint to the Public Trustee online at [email protected] or by telephone at 902.424.7760.
For more information about representation orders and the responsibilities of a representative, see the section on the Adult Capacity and Decision-making Act (representative decision-making).
A judge decides. If there is evidence that an adult is in need of protection, the Adult Protection Service may ask a Family Court or Supreme Court judge to make an order that the adult is in need of protection. Before making an order, the judge will hold a hearing. He or she will give ten days notice of the hearing to the adult and other interested parties, such as the person suspected of abuse. If the judge decides that the adult is in need of protection, the judge may allow the Department of Health to provide the adult with services, or make a Protective Intervention Order.
To report abuse of an adult, call the Nova Scotia Department of Health at 1-800-225-7225 (toll free).
If you have a concern about abuse and you need information, support, or a referral, call the Senior Abuse Line at 1-877-833-3377 (toll free) or call 211. The Department of Seniors has partnered with the 211 information and referral service. If you have a question regarding programs and services available to Nova Scotia seniors please contact 211.
Canadian Network for the Prevention of Elder Abuse (CNPEA): An organization dedicated to the prevention of the abuse of older people in Canada. Their website has information about abuse and neglect issues concerning older adults.
Updated April 2018
pdf Click here (1.41 MB) to download a handy fact sheet (pdf) that gives a quick overview of the following common estate planning documents in Nova Scotia:
Pre-planning your own funeral allows you to decide what kind of funeral you want and how much you want to spend.
If you have a pre-planned funeral, you should:
Some people include burial wishes in their will so there is a formal expression of their wishes. This may be helpful if you give your executor a copy of the will when it is made, but this should not be the only place where you indicate what your wishes are since the will is often not opened until after the funeral.
If you are thinking about pre-paying for your funeral, get at least two quotes. Be sure you know what is included in the basic price and what costs are extra. Consider whether the extras being offered are necessary to your funeral plans and fit your budget. Many of the products and services offered by funeral homes are not required by law.
You can also arrange for a cemetery lot, grave liner, vault, urn, and memorial (including installation). The opening and closing of gravesites can also be pre-arranged. The sale of these cemetery plans is regulated by the Cemetery and Funeral Services Act.
There are two methods of burial. One is an in-ground burial where the body is placed in a casket and lowered into the ground. Some cemeteries require a liner of wood or concrete. This structure keeps the ground even and solid to allow for proper maintenance.
Another, more expensive form of burial is when the casket is permanently placed in a building or mausoleum above or just below the ground. When you buy a plot in a cemetery, you have the right to access it at reasonable times and the right to put a memorial on the plot. The cemetery’s contract with you will set out what types of memorials or monuments are permitted.
When someone is cremated, both the body and the cremation container are burned completely. There is no law saying that a coffin must be used in cremation. However, funeral chapels and crematoria do request that the body be in a container which will burn, has a hard top, sides and bottom, and has handles.
After cremation, usually a small amount of ash is left. The crematorium may dispose of it or the ashes may be shipped to the next of kin in a cardboard container. If the ashes are to be kept or buried by the family, an urn can be made or purchased. You may provide your own urn if you prefer.
There are no legal restrictions on scattering ashes in a body of water or in the wild. However, scattering of ashes on land is subject to laws regarding property. For example, you may not trespass on anyone’s property. You should also avoid scattering ashes near watercourses that are used for drinking water.
Embalming preserves a body for a short time, to improve the body's appearance for viewing. In Nova Scotia, embalming is not required if the body is to be buried or cremated within 72 hours after death. Embalming is not done when a person dies of certain communicable diseases (diseases which may transmitted to others).
Funeral homes will often embalm human remains unless you ask them not to, so you should be clear if you do not want this expense to be included in your funeral plans.
In Nova Scotia, any funeral home, crematorium, or company providing funeral merchandise or services to the public must have a funeral home licence. This licence is issued by Service Nova Scotia.
Funeral homes in Nova Scotia are regulated by the Embalmers and Funeral Directors Regulations. They regulate how a funeral home, funeral director, embalmer, and apprentice embalmer can advertise. For example, funeral goods and services cannot be sold over the phone or through door-to-door sales, or in a hospital, nursing home, senior citizen’s home, or home for special care.
When you buy pre-planned funeral arrangements, the funeral home must give you a copy of your contract. The money you provide for your pre-planned arrangements must be held in a trust account and cannot be used by the funeral home for any other purpose. The lowest priced merchandise available must be included in any display of funeral merchandise.
When you cancel pre-planned funeral arrangements, the seller may charge an administration fee and may keep the interest plus up to 10 % of the money you have paid. If the funeral home goes bankrupt, the money kept in trust will be distributed by the courts to everyone whose money was in the trust.
Your executor may cancel a contract for a pre-paid funeral if you died in another province or country, or if you died under unusual circumstances that mean that the goods or services cannot be used at the time of your death.
You cannot get a refund on a cemetery plot if you decide you don’t want to use it, but you can re-sell it to someone else.
The Canada Pension Plan (CPP) provides a one-time death benefit to the executor or next-of-kin of a deceased CPP contributor. The maximum benefit amount is $2,500. Payment from Service Canada takes approximately 6-12 weeks after a benefit application is filed. For more information, call 1-800-277-9914 or visit https://www.canada.ca/en/services/benefits/publicpensions/cpp/cpp-death-benefit.html.
In Nova Scotia, the Department of Community Services (DCS) may provide financial assistance to help with funeral costs if your spouse or next-of-kin cannot afford to pay for a funeral. Your next-of-kin must also apply for the CPP death benefit, which will be applied against the cost of funeral costs. For more information, contact your local DCS office or visit https://www.novascotia.ca/coms/.
The Veterans Affairs Canada Funeral and Burial Program ensures that eligible Veterans receive dignified funeral and burial services. The Last Post Fund (LPF) is a non-profit organization which delivers the program on behalf of Veterans Affairs Canada. To be eligible for the program, Veterans must meet both military and financial criteria. For more information, visit http://www.lastpostfund.ca.
Yes, you can cancel a pre-arranged funeral plan or cemetery plan at any time. However, a seller may keep any interest that was earned on your money. If any cemetery or funeral goods were purchased at your direction of the consumer, those items must be delivered to you.
In Nova Scotia, you may donate your body to the Dalhousie University Human Body Donation Program or to the Maritime Brain Tissue Bank.
The Human Body Donation Program was established to help professional students learn about human anatomy and biology. Your next-of-kin must consent to the donation. If your remains are accepted, the Program will cover the costs of cremation. Your ashes will be buried in the Dalhousie Memorial Garden or shipped to your next of kin. Your remains will usually be studied for 1-3 years before this happens. For more information, call 902-494-6850 or visit https://medicine.dal.ca/departments/department-sites/medical-neuroscience/about/donation-program.html.
The Maritime Brain Tissue Bank was established to collect brain tissues and to make them available for researchers who are trying to better understand the causes of dementia. For a brain to be donated, an autopsy must be performed at a hospital to determine the cause of death. The family of the deceased must consent. For more information about this program, call (902) 494-4130 or visit http://braintissuebank.dal.ca.
It is possible to make donations to both the Human Body Donation Program and the Maritime Brain Tissue Bank. However, you should have a back-up plan in case either program is unable to accept your remains.
Eco-friendly or “green” burial refers to burial practices that attempt to minimize the environmental impact of disposing of human remains. There are a number of non-profits in Canada which provide information about eco-friendly burial options. These options include avoiding embalming and cremation to allow remains to decompose naturally, and eliminating the use of varnish, glue, laminate, or metal when building coffins or caskets.
The law does not regulate which services or practices may be labelled as green or eco-friendly, so you should research funeral homes or cemeteries making these claims to be sure that their practices align with your wishes. In Nova Scotia, there are no completely green cemeteries, although some cemeteries have green sections.
You can read the Nova Scotia Cemetery and Funeral Services Act online: www.gov.ns.ca/legislature/legc/statutes/cem_funs.htm
The municipality where you want to be buried will have a bylaw on cemeteries. For example, Halifax Regional Municipality’s bylaw C-700 can be read online at: www.halifax.ca/legislation/bylaws/hrm/documents/By-LawC-700.pdf
To find out about bylaws in other areas of Nova Scotia, contact your town or municipality office.
There are also many books available through the public libraries which can help you make decisions about pre-planning a funeral. One recommended resource which includes checklists for funeral pre-planning is:
Big Death: Funeral Planning in the Age of Corporate Deathcare
Author: Doug Smith
Publisher: Fernwood Publishing (2007) ISBN-10: 1552662403
Another resource which examines North American attitudes about death and provides information about how the funeral industry works is:
Smoke Gets in Your Eyes: And Other Lessons from the Crematory
Author: Caitlin Doughty
Publisher: W.W. Norton & Company (2015) ISBN-10: 0393351904
Service Nova Scotia oversees the Nova Scotia Cemetery and Funeral Services Act, and the Embalmers and Funeral Directors Act, and deals with complaints or concerns under those laws. Contact Service Nova Scotia at 1 800 670-4357 or 902-424-5200.
Go to nsfamilylaw.ca to find legal information for grandparents who want to know how they may be able to reconnect or maintain contact with their grandchildren. You will also find information on nsfamilylaw.ca for grandparents who may be making an application to the court for contact time or interaction with or custody of their grandchildren.
It is a good idea to think about who you would want to make health care decisions for you if you are not capable of making these decisions yourself. Anyone could lose this ability, even temporarily.
A personal directive allows you to choose who would make health care and other personal care decisions for you if you are not capable of doing so, and to give guidelines for that person to follow. This is a good place to start for answers to some of the questions you may have about personal directives.
You will find more information about personal directives, including an information booklet, instructions for creating a personal directive and a sample form, on the Nova Scotia Department of Justice website at gov.ns.ca/just/pda
Capacity – The ability to understand information that is relevant to making a personal care or medical decision and the ability to understand the consequences of a decision or lack of a decision.
Consent – To agree or give permission to a personal care or medical treatment decision.
Delegate – Someone who you authorize to make personal care or medical treatment decisions for you if you cannot make them yourself.
Informed consent means that you have received all information necessary to make your decision, including your medical diagnosis, available forms of treatment, and availale options to relieve suffering.
Personal directive – A legal document authorizing another person to make personal care or medical decisions for you.
Representative – A court may appoint a representative to make personal care or medical decisions for you if you cannot make them yourself and you have not appointed a delegate.
Everyone in Nova Scotia has the right to make decisions about personal care and medical treatment for themselves. If you do not have capacity to make a decision for yourself, you can prepare a legal document called a personal directive to appoint someone to consent for you. This person is legally called a delegate. Sometimes they are called a proxy.
If you have not appointed anyone, your doctor will ask your closest family member to consent for you. They will be asked in this order:
A relative or friend could apply to the courts to be appointed as your Representative in order to be able to give consent to health care for you. Before appointing a representative, a judge must be satisfied that you are not capable of consenting and that it is in your best interests to have a guardian appointed. For more information, see the section on Adult Capacity and Decision-making.
When there is no guardian or other person authorized to consent for you, the Public Trustee may be asked to give consent for you might agree to take on this task. For more information, see the section Public Trustee.
You would need to make a personal directive. In it, you may appoint any person who is at least 19 years old as your delegate. If you want to appoint your spouse or partner and they are not yet 19 years old, you can do so. A delegate must be mentally competent, and they do not have to be related to you.
Choose someone whom you can trust to carry out your wishes. You should discuss your wishes for your health care with your delegate.
Your directive must be in writing and signed by you. Your signature must be witnessed by a person who is not the delegate or their spouse. You should name a back-up delegate in your directive in case your first choice is unable to act for any reason, even temporarily. They could be travelling in another country, and impossible to contact. In that case, your back-up could make decisions for you. Your chosen delegate could resume the role of delegate once they returned to the country or they could be reached.
If you left instructions for your care in the personal directive, those instructions would remain valid and would need to be respected if your delegate or back-up delegate could not be reached.
You don’t have to talk to your lawyer when you write your personal directive, but it is a good idea. Your lawyer can ensure that your directive meets all the legal requirements.
The government of Nova Scotia provides instructions for preparing a personal directive and a sample form online at https://novascotia.ca/just/pda/.
You may also wish to talk with your doctor when writing your directive, so that you can decide which treatments would work best to achieve the results you want. Your doctor can explain the different treatment options available and provide the best instructions to deal with your particular needs. Without medical advice, you may not be able to give the instructions that will provide the results you want.
Some health and residential care facilities have standard directives that they ask all patients or residents to sign when admitted. These directives may contain instructions that you would not want, such as a “blanket” do-not-resuscitate order. You do not have to sign this standard form, and you cannot be refused treatment or admittance for refusing to sign it. The Personal Directives Act states that it is against the law to require a personal directive.
If you are given a standard form, you should review it with your doctor before deciding whether to sign it. You may also want to show it to a lawyer. Do not sign a standard directive form if it would not give you the health care results you want. Instead, you should discuss your health care wishes with your family. You may want to draw up your own directive if you don’t already have one.
In order to care for the needs of the patients or residents they serve, many facilities will ask you if you have a personal directive. If you have one, you should provide a copy for their files.
Your directive should be clear and detailed. Try to avoid broad statements that might reduce the options available for your treatment. For example, if you say you do not want to be given any medication, you might be ruling out a simple treatment that could ease your pain or help you overcome minor ailments during your illness.
It is important to write down your values and beliefs in your personal directive as a way to assist in interpreting instructions and helping a delegate.
Advance planning is important for all stages of life. Personal directives are important for ensuring the decisions you would want are made in times of temporary incapacity such as following a car accident that leaves you unconscious for a week. They are also intended for permanent incapacity such as a brain injury where you may live in the community for many years with assistance. They are also intended for use at the end of your life. A personal directive helps you obtain the level of comfort and care you want.
You should give your doctor a copy of the directive to keep in your medical file. You could also give a copy to your delegate and to your close family members.
Keep the original at home in a special place and tell your delegate or close family members where it is. It is wise to keep it in a firesafe box. Do not put your directive in a safe deposit box that is in your name only as your delegate will not have access to it. Although people who have been given copies of your directive may not require the original, it is a good idea for your delegate to be able to produce the original directive if needed.
For example, there could be a situation where the copy you provided cannot be located and an unfamiliar medical staff person insists on seeing the original. It is a good idea to keep a list of people who have copies of your personal directive with the original. If you are travelling, take a copy of your directive with you. If you are admitted to a hospital or continuing care home, take a copy with you.
Advances in medical knowledge and technology are constantly bringing new ways to treat diseases and injuries. It is important that you review your directive with your doctor to make sure you have accounted for new treatment methods and technology. If you have a specific illness or condition, you should review your directive more frequently to make sure you keep up to date on treatments.
Organizations that deal with specific diseases or illnesses (for example, cancer, AIDS, or Alzheimer’s disease) may be good resources for information about new treatments and advances in care. They are also helpful in providing support and ways of helping you and your family cope with the illness.
You can always ask your doctor or your medical specialist for more information, or you can go online. If you get information online, check to be sure that it comes from a reliable source.
You also might want to update your personal directive when you get married, remarried, or divorced. If your delegate or back-up dies, or becomes unable to consent, you should update your directive.
You can revoke (cancel) your personal directive at any time, so long as you have capacity to understand the consequences. You should destroy all copies of the old directive to avoid any confusion and make a new directive if you want to. You can also declare your intention to cancel your personal directive in writing, and have it signed and witnessed.
You should tell your doctor, hospital, or health care facility about the cancellation and get back any copies you gave them. It is important that you let them know that you have changed your mind, whether or not you decide to make a new directive. You will also want to tell your family members.
If you decide to make a new directive, then you should include a paragraph revoking the old directive. Give a copy of any new directive you make to your doctor. You could also give a copy to your delegate and to your close family members.
The legal requirements for directives are provincial. The law about directives is not the same outside of Nova Scotia. If you become unable to consent while you are outside the province, your directive might not be followed if it does not meet the requirements of the law in the province or country you are visiting.
Before travelling, you should review your directive and get advice from your lawyer to be certain that it will be followed if you are unable to consent to treatment while you are out of the province. If you are living outside Nova Scotia for an extended time, you may want to do an additional directive that will be valid where you are living.
The term euthanasia means an act taken by one person to end the life of another to relieve that person’s suffering. The term assisted suicide is the act of intentionally killing oneself with the help of another person.
In 2015, the Supreme Court of Canada ruled that parts of the Criminal Code that prohibited medical assistance in dying would no longer be valid. They rules that law needed to change to satisfy the Canadian Charter of Rights and Freedoms. Now, the federal government has passed legislation that allows eligible Canadian adults to request medical assistance in dying.
You can write a personal directive that requests that your delegate refuse to give consent for treatments that would prolong your life, but you cannot request that they take active steps to end your life.
There are two types of medical assistance in dying available to Canadians. They each must include a physician or nurse practitioner who:
Both of these methods require the eligible person to give consent at the moment the substance is administered or taken to ensure that it is their wish at that moment. This ensures that no one else makes this important decision for another person and prevents medical assistance in dying from being used without full, informed consent.
If you want to try to provide advance consent to medical assistance in dying in your personal directive, in case it becomes legal at a later date, you may wish to speak with a lawyer about the type of wording to include in the directive.
In order to be eligible for medical assistance in dying, you must:
You must make a written request that says you want to have a medically assisted death. Some provinces and territories may require that you complete a specific form. This form may be provided by your health care provider or available on a provincial or territorial website.
If you are unable to write, another adult can sign the request on your behalf under your clear direction.
You must sign and date your written request before two independent witnesses, who must also sign and date the request. To be considered independent means that the witnesses cannot:
Yes, you may choose to withdraw your request at any time. You are not required to proceed with medical assistance in dying.
Check out LISNS Wills App! It helps you collect the basic information your lawyer will need to do your will for you. You don't need to create an account to use it. We're in the testing stage, so welcome your feedback.
pdf Here is a sample will (77 KB) , to give you an idea what a will might look like.
A will is a legal document that lets you say what you want done with your possessions after you die. A properly signed and witnessed will becomes a binding legal document on the date you die. A will has no legal effect until you die.
A person who makes a will is called a testator. Your estate is all of the possessions you own when you die. This includes many things such as real estate, jewellery, artwork, clothing, and furniture.
A will also lets you say who you want in charge of carrying out your wishes. Whoever is in charge of carrying out your wishes is called your executor or your personal representative.
No. The law does not say that you must make a will. However, making one should give you peace of mind and make it easier for your family or friends to handle your affairs when you die. Unfortunately, it is not unusual for family members to argue over the estate of a deceased relative who dies without leaving a will.
There are many reasons to make a will. A will allows you to:
No. The law does not say that a lawyer must write your will. You can write your will yourself, fill in a blank form of a will that you buy from a store or online. There are also books and kits available about doing wills.
However, a will is an important legal document, so it is always best to have a lawyer do your will. Please contact us and we can put you in touch with a lawyer who does wills & estates work, or click here for other ways to find a lawyer.
Your will must be worded very carefully to make sure that what you want actually happens. A lawyer is able to help you by:
If you feel that a family member or other person is pressuring you to leave money or property to them in your will, you can talk to a lawyer about this.
If you are concerned that your spouse or someone who is dependent on you will not be able to manage their financial affairs or may be vulnerable to financial abuse or scams if you die before them, you should discuss with the lawyer how to best provide for that person.
It is a good idea to get legal advice about making a will even if you do not want the lawyer to write your will.
If you decide to write your own will, you should at least see if you can have a lawyer look it over to make sure that it meets all legal requirements and that it says what you want it to say.
Lawyers generally charge a fee based on the amount of legal service you need and how complex the will is. The cost to do a will can range from under $200 and upwards. Some lawyers charge a flat fee for doing a will. Some lawyers offer estate planning package deals where they will prepare your will, a power of attorney, and a personal directive at a lower cost than for doing the individual documents. You should discuss fees before you make any decisions about hiring a lawyer, whether you plan to prepare the will yourself or you want the lawyer to prepare it. Click here for ways to find a lawyer, or contact Legal Information Nova Scotia's Lawyer Referral Service, and we can try to put you in touch with a wills and estates lawyer.
Any person aged 19 or older who is of sound mind can make a will. A person under 19, can make a will if he or she is or was married.
"Being of sound mind" is often called having "testamentary capacity". This means that:
You must have testamentary capacity at the time the will is made. If you become mentally incompetent after you make a will, it is still a valid will.
Testamentary capacity may become an issue with persons who have a mental infirmity or who are very ill. The mental capacity of a very ill person may be affected by the illness or drugs or pain. Making your will while you are in good health may avoid the problem of having your mental capacity questioned.
You must know and approve of the contents of your will.
The will may be invalid if you were misled, whether by fraud or simply by accident, or if someone exerted undue influence on you. This is another reason for meeting with a lawyer to discuss the will so that there is evidence that the will was made by your own free choice.
The legal requirements of a will are set out in the Nova Scotia Wills Act. Your will must meet all the legal requirements; otherwise, it will not be valid. The legal requirements include:
Age: In Nova Scotia, you must be aged 19 or older to make a will. There are a few exceptions. For example, a person under 19 can make a will if they are or were married.
Capacity: You must be mentally competent to make a will. This is also called “being of sound mind.” When talking about wills, this is most often called having testamentary capacity. To have testamentary capacity, you must:
You must have testamentary capacity at the time you make your will. If you become mentally incompetent after you made your will, the will is still valid.
Testamentary capacity is often an issue with people who have a mental infirmity or who are very ill. The mental capacity of someone who is very ill may be affected by the illness, drugs, or pain. You should make your will while you are in good health to avoid having your mental capacity questioned.
Knowledge: You must know and approve of the contents of your will. The will may be invalid if you were misled by fraud or simply by accident. It may also be invalid if someone put an inappropriate amount of pressure on you, known as “undue influence.”
Written: A will must be in writing, but it does not have to be typed. It can also be handwritten or printed. A videotape, an audio or digital recording, and any other way of communicating your wishes are not considered to be valid wills.
Signature: You must sign your will must be signed at the end. You must sign the will before two witnesses who must be present at the same time, unless it is a holograph will. If you are unable to sign the will, you can ask someone to sign it for you in your presence. You must tell the two witnesses that the will is yours.
Witnessed and signed by two other people: Your will must be signed by two witnesses in your presence and in the presence of each other. The witnesses must be at least 19 years old and must not benefit from the will or be married to someone who benefits. The witnesses do not need to know what your will says.
No. The will must be in writing but it can be handwritten, printed, or typed. A videotape, an audio or digital recording, and any other way of communicating your wishes are not considered to be valid wills in Nova Scotia.
Yes. The will must be:
You should mark the date on the will.
After the will is completed, it is wise to initial and number each page so that pages cannot be replaced or removed from the will.
You should also arrange for one of the witnesses to swear an Affidavit of Execution.
An affidavit is a statement sworn before a Commissioner for Oaths or Notary Public. An Affidavit of Execution is a statement by one of the witnesses to the signing of a will. In the affidavit the witness confirms that he or she witnessed the signing of the will by the testator and in the presence of the other witness and that the testator was of sound mind and of the age of majority at the time the will was signed.
An affidavit of execution can be made any time after the signing of the will but it is best to do it immediately after the will is signed. After your death, your Executor can use the affidavit in court to show that the will was properly signed and witnessed. If there is no affidavit, the Executor will have to locate one of the witnesses and have him or her swear an affidavit when the Executor applies for a grant of probate of the will.
If you want to see what an Affidavit of Execution looks like, go to courts.ns.ca, under Probate Court forms: courts.ns.ca/Probate_Court/nspbc_forms.htm, and look for "Affidavit of Execution of Will or Codicil".
A holograph will is a handwritten will signed by the testator but not witnessed.
Before August 19, 2008 holograph wills were not valid in Nova Scotia. Then the law was changed, and a holograph will made after August 19, 2008 is now legal. The courts have ruled that a holograph will made before August 19, 2008 is not valid.
If you have a holograph will it is best to check with a lawyer to make sure it is valid.
If your will is unclear when you die, your family may have to go to court to sort out your estate. Your executor will have to talk to a lawyer.
The will contains your instructions about what you want done with your property after you die. The language should be clear and simple, so no one is confused about what you meant.
A will should have several sections. These are called "clauses":
The will should say that you revoke all previous wills and codicils.
Appointment of an Executor
The will should appoint an executor who is responsible for carrying out the instructions in the will.
Disposal of Property
This section of the will should say who gets your property and under what conditions. A will only comes into force after your death. Up until your death you are free to deal with your property as you wish. For example, if you leave your cottage to your niece in your will, it does not prevent you from selling the cottage and using the money as you wish.
The will can only dispose of property that you still own at the time of your death.
If you are leaving property to someone, you may want to provide for the possibility that he or she might die before you. For example, if you leave some of your property to your cousin, do you want his children to inherit it if he dies before you or do you want the property to go to someone else?
Generally, wills should include a residuary clause. This clause says who gets the property that remains after all gifts have been paid out or given to the beneficiaries.
If your will does not contain a residuary clause, the remaining property (called the residue) will be treated as if you had died intestate. It will be distributed according to a provincial law called the Intestate Succession Act. 'Intestate' means dying without a will.
A will may contain other clauses to suit your needs. For example, you may want to recommend a guardian for your children, create a trust, or set out the powers of the executor.
pdf Here is a sample will (77 KB) , to give you an idea what a will might look like.
It is not a good idea. Often the will won't be found or read until after the funeral. You should tell the person who is likely to arrange the funeral what your wishes are or leave separate written instructions.
In most cases, you are free to deal with your property as you wish. However, two laws, the Testator's Family Maintenance Act and the Matrimonial Property Act, place some limitations on that freedom.
Testator's Family Maintenance Act
This Act tries to make sure that your dependents are left with money and support whenever possible and if necessary. Children (including adopted children) and a widow or widower are considered dependents under the Act.
Common law spouses are not considered dependents under the Act unless they have a Registered Domestic Partnership. Then they are included from the date they registered the partnership. Divorced spouses are not considered dependents under the Act.
The judge considers all the circumstances of a case in deciding whether to give support to dependents. They include:
This is not a complete list. The judge may take other factors into account. A person who wants to apply for support under this Act should talk with a lawyer.
The Matrimonial Property Act
This Act recognizes the contribution of both spouses to a marriage. The Act says that when one spouse dies, the surviving spouse can apply for an equal division of matrimonial property. The surviving spouse must apply to the Supreme Court.
A judge decides what share of the property the surviving spouse should get.
Common law spouses are not covered by the Act unless they have a Registered Domestic Partnership. Then they are included from the date they registered the partnership.
The application for division must be made within six months after probate or administration of the estate has been granted. Anyone who wants to make an application should first talk with a lawyer.
You are responsible to provide for your family and dependents as required by the Testatorsí Family Maintenance Act and the Matrimonial Property Act (see above), but otherwise you are free to deal with your property as you wish. You may decide to leave your estate to someone other than your closest relatives. You may decide to leave it to some family members but not to others. If these are the kinds of things you want to do, it is wise to get advice from a lawyer and to record your reasons in writing.
An insurance policy can say that it is to be paid to a certain person or to your estate. If the insurance money is to be paid to your estate, the money from your policy will be distributed according to the terms of the will. If an individual is named, the money goes directly to that person. It does not become part of your estate.
Yes. A will only comes into force after your death. Until your death, you are free to deal with your property as you wish. For example, if you leave your cottage to your niece in your will, it does not prevent you from selling the cottage and using the money as you wish. The will only applies to property that you still own at the time of your death.
If you are leaving property to someone, you should consider the possibility that they might die before you. For example, if you leave some of your property to nephew, do you want his wife and/or children to inherit it if he dies before you? If you want the property to go to someone else, you should say so in your will.
You can change your will at any time up until you die provided you are mentally competent. You should look at your will regularly to make sure it is still what you want. For example, you may no longer own some of the property mentioned in your will. You may want to make changes because of births, deaths, marriages, or divorces in the family.
There are two usual ways to change your will:
Changing your will by marking or crossing out words in the will often causes problems. It is much wiser to make a codicil or, even better, a new will.
You must be of sound mind at the time you make the changes. If you are not, your new will or codicil may be successfully challenged in court.
A codicil is a document that changes your original will. Usually a codicil is used only to make minor changes. You must sign the codicil and have your signature witnessed in the same way as your will.
There are five ways to cancel your will, or parts of your will. This is called revoking a will.
Your will may be valid if it was made outside Nova Scotia. You should have it checked by a lawyer to see that it meets the requirements of Nova Scotia law.
The Law Reform Commission of Nova Scotia is currently looking at the Intestate Succession Act and has a survey asking for the views of Nova Scotians on how the law should be changed. The survey provides information on why Nova Scotians should make a will, and further information on how property will be divided under the current Intestate Succession Act if you do not make a will. Please go here to do the Law Reform Commission's public consultation survey and have your say!
If you die without a will, you are said to die intestate, and the rules set out in the Nova Scotia Intestate Succession Act must be used to decide who gets your estate:
The law about intestacy also applies if you do not deal with all your property in your will. In this case, you are said to die partially intestate. The part of your estate not covered in your will is distributed according to the Intestate Succession Act.
Your executor looks after your will when you die. An executor is the person or corporation you name to carry out the terms of your will. The executor's job is to see that everything in the will is handled properly. The Executor applies to the Probate Court for a grant of probate. This gives the executor power to handle your estate in accordance with the terms of your will.
The executor will gather together all of your assets, pay your debts and taxes, and distribute your money and property according to the instructions in your will.
If you do not name someone to be an executor in your will or if you die without a will, your next of kin will usually ask the Probate Court to appoint someone to fill the executor's role. This person is called an "administrator".
The court uses the term "personal representative" for those appointed as either an executor or an administrator.
It is best to name an executor in your will because then you can be sure that your estate will be handled by someone you know well and trust. Also, you can give broader powers of administration and discretion to your executor than the Probate Court will give an administrator.
Most people ask a family member or a close friend to act as their executor. You need to be sure that the person you choose has the time and the ability to carry out the many duties of an executor. The executor should be someone who will get things done. Looking after an estate can be difficult and it takes time. Sometimes it includes responsibilities that last for years.
Here are some things to keep in mind:
You can name your lawyer as executor, but most lawyers do not act as executors. They prefer to handle only the legal side of preparing documents and advertising for creditors. Before you name your lawyer check that he or she is willing to be your executor.
Some people consider naming Nova Scotia's Public Trustee as executor, especially if there is no family member or friend they feel would be able or willing to act as executor. You need to check with the Office of the Public Trustee first though if you are considering that as an option.
An executor is responsible for seeing that everything in your will is handled properly. The executor gathers all of your assets, pays your debts and taxes out of your estate, and distributes your money and property according to the instructions in your will. It is best to name an executor and a back-up executor in your will so you can be sure that your estate will be handled by someone you know well and trust. Also, you can give broader power to your executor than the Probate Court can give if it has to appoint an administrator.
The executor applies to the Probate Court for a grant of probate. This gives the executor power to handle your estate in accordance with the terms of your will.
If you do not name someone to be an executor in your will, if your executor is not able to act for any reason, or if you die without a will, your next of kin will usually have to ask the Probate Court to appoint someone to fill the executor's role. This person is called an administrator.
The court uses the term personal representative for a person appointed as either an executor or an administrator.
If your estate is complicated or if you do not have a relative or friend who is able to act as executor, you may want to appoint a trust company as your executor. You should check that the company is willing to act as executor or co-executor. If you do not check, the company may renounce and refuse to act as executor upon your death.
Most trust companies have experience in estate planning. Their advice may help you plan your estate to save taxes and to avoid administrative problems. Also, because such companies are strictly regulated, you can be sure that your estate will be handled properly and legally.
If there is a chance that a problem will arise among your heirs, a trust company might be a good choice because it would be an impartial executor. If you appoint a trust company as your executor or co- executor, the company may give you free advice on drafting your will and may store it for you.
There can be disadvantages to using a trust company:
Before choosing an executor, you may also want to think about the time involved in administering your estate. For example, if you want to set up a trust for the care, education, and benefit of your children or grandchildren, this would be a long-term commitment for an executor. In a case like this, you may want to consider a trust company rather than someone who might not be able to make such a commitment or who might die before the funds in the trust have all been distributed.
Before choosing an executor, you may also want to think about the time involved in administering your estate. For example, if you want to set up a trust for the care, education, and benefit of your children, this would be a long-term commitment for an executor. In a case like this, you may want to consider a trust company rather than someone who might not be able to make such a time commitment or who may die before the funds in the trust have all been distributed.
Yes. A person named in your will can refuse to act (called a renunciation, or "renouncing"). By refusing, an executor makes it known that he or she does not plan to take on the job and gives up all the rights and responsibilities of the appointment. If the person you choose is not told until after your death, and then he or she refuses, your next of kin will have to apply to the court to appoint someone else. This is why, before you make your will, you should ask the person whom you want to be your executor if he or she is willing to take on the job. If he or she refuses, you can appoint someone else.
You should name a back-up executor in your will in case this happens. If you have not named a back-up executor, then your next of kin will have to ask the court to appoint someone else.
Before you make your will, you should ask the people you want as your executor and back-up executor if they are willing to take on the job. If either one refuses, you can appoint someone else.
Yes. You can appoint more than one executor (called "co-executors") to share the responsibility. Having more than one person in charge means that there may be disagreements about what is to be done.
Unless you provide otherwise, each co-executor has the authority to sign documents on behalf of your estate. If your co-executors do not agree, this could cause problems for your estate.
The phone number for your local Probate Court office should be listed in the blue government pages of your phone book under "Courts". Office location information is also available on the Courts of Nova Scotia website.
The information available from the Probate Court includes:
Last reviewed: April 2018
A power of attorney is a legal document that lets you give another person authority to act on your behalf. If you are giving someone the authority to act on your behalf, you are called the donor or grantor. If you are the person receiving the authority, you are called the attorney (even if you are not a lawyer). Giving someone a power of attorney does not limit you from acting on your own behalf. You still have control of your financial affairs and are free to deal with your property, money, and investments.
The law does not require you to prepare a Power of Attorney document. But it is a way for you to choose who will act for you if you are unable to do so. It has no legal effect after your death.
Note: "Power of Attorney" is the document itself. The power you give to an attorney is written in lower case letters, as in "power of attorney."
Yes. If you give someone your power of attorney, you can still make your own decisions until you become unable to do so.
An Enduring Power of Attorney is a special Power of Attorney document that clearly says that the authority to act on your behalf continues even if you become mentally incompetent (lose legal capacity).
A Power of Attorney that is not an Enduring Power of Attorney will become invalid and cannot be used if you become mentally incompetent (lack capacity). In that case, a guardian or representative may need to be appointed to handle your affairs. For more information on adult guardians, see the section on Guardianship of Adults.
An Ordinary Power of Attorney is used to authorize someone to take specific action for you at specific times. For example, people in the military may authorize someone to handle their banking while they are deployed outside of Canada. Enduring Powers of Attorney are more common as they allow someone to act for you when you cannot act for yourself.
If you want the person named in your Power of Attorney to be able to continue to act if you become mentally incompetent, then you will need to have an Enduring Power of Attorney.
If you already have an Ordinary Power of Attorney, talk with your lawyer about whether you should replace it with an Enduring Power of Attorney.
There are many reasons to do a Power of Attorney such as:
If you do not have an Enduring Power of Attorney, and you become mentally incompetent and unable to take care of your affairs, a relative or friend may ask a court to appoint a guardian to handle your affairs. This might not be the person that you would have chosen to handle your affairs.
For more information, see the section on Guardianship of Adults.
You can give your attorney two levels of responsibility:
a) A general power of attorney: this gives your full authority to your attorney. There are no limits on what they can do on your behalf .
b) A specific power of attorney: this says exactly what authority you give to your attorney. It limits what he or she can do on your behalf .
A specific power of attorney is most often used in a situation where you need someone to sell a piece of land for you or to deal with a particular bank account for you. It is important for a specific power of attorney to include all steps involved in the work you want done, so the attorney can complete the work.
It is too late to give a power of attorney if you are not mentally competent. Competency is sometimes an issue where the person wishing to give a power of attorney is suffering from progressive dementia. In this situation, it may be necessary to get a medical opinion as to whether the person has capacity to give a power of attorney. If they do not, in some cases it may be necessary for a family member or other caring person to apply to court to ask to be appointed as the adult's representative decision-maker under the Adult Capacity and Decision-making Act.
Anyone who is at least 19 years old and who is mentally competent can be your attorney. You should choose someone you trust and who will carry out your wishes.
If you do not wish to give a relative or friend power of attorney, you can appoint a lawyer or trust company. Also, depending on the circumstances, the Nova Scotia Public Trustee may agree to act as your attorney. The Public Trustee is an official appointed by the provincial government who manages the affairs of persons who, for one reason or another, are unable to manage their own affairs. Contact the Nova Scotia Public Trustee for more information.
It is important to discuss your wishes with whoever you plan to name as your attorney. The person you name is not required to act as your attorney and may choose not to accept the role. For this reason, you should also name an alternate attorney.
The legal requirements are:
Adult: In Nova Scotia, you must be aged 19 or older in order to:
Capacity: You must be mentally competent to make a Power of Attorney. This is also called having legal 'capacity'. You must be able to understand what it means to give a power of attorney. Legal capacity is often an issue with people who have a mental infirmity or who are very ill. The mental capacity of someone who is very ill may be affected by the illness, drugs or pain. You should make your Enduring Power of Attorney while you are in good health to avoid having your mental competence questioned. The person who is named as an attorney under a Power of Attorney must understand what it is to receive a power of attorney.
Written: Your Power of Attorney must be in writing.
Signed: Your Power of Attorney must be signed by you, the donor. It is wise to put it under seal because some purposes for which the power may be used require it to be under seal. Sealing means that a red seal (available from office supply stores) is attached to the document opposite the donor's signature.
Often, the donor's signature is witnessed by another person. This is not a legal requirement for an ordinary Power of Attorney but is commonly done.
An Enduring Power of Attorney, however, must be witnessed. The witness must be at least 19 years old and cannot be the attorney or the attorney's spouse.
A power of attorney does not have to be signed by the attorney. However, if the attorney is to have access to a bank account, the bank will need the attorney's signature for its file.
If you are unable to sign the Power of Attorney, you can place your mark on it. A mark is a cross or other symbol used in place of a signature. A witness should sign a statement saying that the mark was made by you. This statement is called an affidavit.
If you are visually impaired, you should have the contents of the document read to you before you sign it or place your mark. A witness must sign an affidavit that the document was read to and understood by you before you sign it or place your mark on it.
Affidavits must be sworn before a commissioner for oaths.
The following are not legal requirements but they are a good idea:
An Affidavit of Execution is a statement sworn by a witness in which the witness confirms that he or she saw you sign the Power of Attorney.
Although it is not a legal requirement to do an Affidavit of Execution for a Power of Attorney, it is common practice. If the Power of Attorney needs to be recorded at the Land Registration Office, you will need an Affidavit of Execution.
Affidavit of Execution is a combination of two legal terms. An affidavit is a statement that is sworn before a Commissioner of oaths or a Notary Public.
The word execution is a legal term for the formal signing of a legal document before either a Commissioner of Oaths or a Notary Public.
All lawyers are Commissioners for Oaths. But you do not have to be a lawyer to be a Notary Public or Commissioners for Oaths. You can find Notary Publics and Commissioners for Oaths in the Yellow Pages, or click here for ways to find one.
For more information on recording your Power of Attorney at the Land Registration Office, see:
Can my attorney deal with land?
Does my Power of Attorney have to be recorded with the province of Nova Scotia?
Yes. In addition to the legal requirements for an Ordinary Power of Attorney, an Enduring Power of Attorney has two special requirements:
No. But if they are to have access to any of your bank accounts, you will need to arrange to have them sign at the financial institutions where you have those accounts. Each bank, trust company, and credit union will need their signature. The institution will also have its own forms for you to complete.
You choose what powers to give your attorney.
A general power of attorney gives the attorney power to act in every capacity for the donor.
A specific power of attorney gives the attorney power to carry out specific acts only, such as the power to sell land or access a bank account.
You must be sure that a specific power of attorney gives your attorney enough power to complete the task. For example, a power to purchase a piece of land should include the power to sign all documents necessary to complete the purchase.
No. The law does not say that a lawyer must write your Power of Attorney. You can make up your Power of Attorney yourself. You can fill in a blank form that you can buy from a store or download from the internet. There are also books and kits available for Powers of Attorney.
It is wise to get legal advice from a lawyer about making a Power of Attorney, even if you do not want the lawyer to write it for you. A Power of Attorney is an important legal document and it must be worded carefully to make sure that it says what you want. In the unlikely event that a lawyer who draws up a Power of Attorney makes a mistake, there is insurance to cover the situation. Among other things, a lawyer can:
If you decide to write your own Power of Attorney, you should have a lawyer look it over to make sure that it meets all the legal requirements and that it gives your attorney the authority you want to give.
It is very important to get advice from a lawyer if you want to have a specific or a Springing Power of Attorney to ensure that these documents are written to meet your individual needs.
Some office supply stores may have forms for general powers of attorney. There are also books that provide examples of forms.
There is no standard form for a specific power of attorney because the wording will depend on what powers you want to give your attorney. You or your lawyer will have to draw up the form to fit your specific needs. You will usually need a special form from your bank if you want your attorney to access your bank account.
A general power of attorney form from an office supply store costs a few dollars. Banks do not charge a separate fee for their power of attorney forms.
Lawyers fees will vary depending on how long it takes to draw up the power and the number of times the lawyer meets with you. You should ask the lawyer about their fees. Most lawyers charge a flat fee for doing a Power of Attorney. Go here for information about finding a lawyer.
Your attorney may have out-of-pocket expenses, such as for postage and telephone.
If your attorney is a lawyer and you ask him or her to do work related to being a lawyer such as purchasing property or drawing up a will, he or she may charge for doing these tasks.
The Public Trustee and trust companies charge fees for acting as your attorney. Fees are based on the value of your estate and your income.
A friend or relative is not entitled to any fee unless there is an agreement between the two of you for payment. In that case, you should include the terms of payment in the Power of Attorney document. Often a family member or a friend acts as an attorney without payment.
That depends on whether you have appointed a relative, friend, lawyer or trust company as your attorney.
A friend or relative is not entitled to any fee unless there is an agreement between the two of you for payment. In that case, you should include the terms of payment in the Power of Attorney document. Often a family member or a friend acts as an attorney without payment.
If a lawyer is acting under a power of attorney and is doing legal work for you, such as purchasing property or drawing up a will, they will charge a fee for doing this work.
A trust company will charge a fee for acting as your attorney. The fee is based on the value of your estate and your income.
No matter who you pick, your attorney is entitled to be compensated for any out-of-pocket expenses such as postage and parking.
Yes. Before you write your Power of Attorney, you should ask the person you want as your attorney if they are willing to take on the job. If they refuse, you can appoint someone else. You should also ask a back-up attorney.
If you do not name a back-up attorney, your attorney will automatically be cancelled if your attorney gives you notice that they no longer want to act as your attorney.
Yes, but usually only if you include a special clause in your Power of Attorney that permits them to deal directly with the Canada Revenue Agency on your behalf.
Yes, if you give your attorney that authority in your Power of Attorney. If your Power of Attorney allows your attorney to deal with land, it must be recorded at the Land Registration Office in the district where the land is located before the land transaction can be completed. The Power of Attorney must be signed under seal and have an Affidavit of execution.
Phone numbers for Land Registration Offices are listed in the blue Government pages of the phone book under Land Registration or visit novascotia.ca for locations. There is a fee to record documents. Fees change from time to time. Contact staff at the Land Registration Office for information on current fees for recording documents.
Land transactions done with a power of attorney are not valid until the power is registered.
If you become mentally incompetent, the power becomes invalid unless you have an enduring power of attorney. An enduring power of attorney says that you wish the power to continue even if you become mentally incompetent.
If you do not have an enduring power of attorney and you become mentally incompetent, a guardian may have to be appointed by the court to handle your affairs.
If you have an ordinary power of attorney you may wish to replace it with an enduring power of attorney to enable your attorney to continue to act should you become mentally incompetent.
Only if you give them the authority to do so. The Nova Scotia Personal Directives Act lets you give a person authority to consent to medical treatment on your behalf if you become mentally or physically incapable of giving consent. This is usually done in a separate legal document called a personal directive. However, consent to medical treatment included in a Power of Attorney prepared before the Personal Directives Act came into effect is still valid.
See the section on Health Care Treatment and Consent for more information, and go to novascotia.ca/just/pda/ for information about personal directives, including a sample form.
If you decide to include medical consent, your Power of Attorney must be in writing, signed by you, and witnessed. The witness cannot be the delegate or the delegate's spouse. Both you and your delegate must be at least 19 years of age and must be mentally competent.
You should put your Power of Attorney document in a safe place. A fire-proof location is the best place.
If you want your attorney to start using the power immediately, you should give it to them. Keep a copy for yourself in a safe place. You should give a copy to any financial institutions and to any other parties that your attorney will be dealing with on your behalf. Keep a list of the businesses and people to whom you give a copy of your Power of Attorney, in case you have to tell them of any changes.
If you have a Power of Attorney that may not be used for a while, perhaps never :
Do not put your Power of Attorney in a safe deposit box that is in your name only, as your attorney may not be able to get access to it. It may be many years before your Power of Attorney is needed, if it is ever necessary. Meanwhile, the person storing your document may move away or die.
As time passes, keep track of where your Power of Attorney is being kept. Make sure you tell your attorney where the document is stored so that they can find it if it is needed. You should make sure that the people in your life who need to know about your Power of Attorney also know where to get it when it is needed.
You can end a power of attorney at any time and should do so if your attorney is abusing the power you have given them.
A power of attorney can end in any of these ways:
a) Notice by the donor: You may cancel a power of attorney by giving notice to the attorney. The notice must be in writing, dated, and signed by you.
If you cancel your power of attorney:
You should always name a back-up attorney in your Power of Attorney in case your first choice is not able to act for any reason. If you do this, your back-up attorney takes over authority to act on your behalf and your Power of Attorney document remains effective. If you have not named a back-up attorney, your Power of Attorney document will have no legal effect after your attorney has given you notice that they no longer want to act for you.
b) Notice by the attorney: Your attorney can give you notice that he or she no longer wants to act as attorney. You should notify the bank and others that the power has been cancelled. Keep a copy of the cancellation letters. Ask your attorney to return the Power of Attorney to you.
c) Mental incompetence: If you become mentally incompetent, your Power of Attorney is automatically cancelled unless it is an Enduring Power of Attorney.
If your attorney becomes mentally incompetent and you have not named a back-up attorney, your Power of Attorney is automatically cancelled. This is the case whether it is an ordinary or an Enduring Power of Attorney.
In some situations, when the Public Trustee is acting for a person who becomes mentally incompetent, the Public Trustee will continue to act on behalf of that person.
d) Death: When you die the power of attorney is cancelled. If the attorney dies the power of attorney is cancelled unless you have named a back-up attorney.
If the public trustee is acting on behalf of a person who dies, they will continue to act until a court appoints someone to administer the estate if the person did not leave a will naming an executor. (For more information, see the section Public Trustee or go to novascotia.ca/just/pto/.)
e) Bankruptcy: If you become bankrupt, a licensed trustee in Bankruptcy takes over all your financial affairs and your power of attorney is cancelled. They administer the affairs of a bankrupt person.
If your attorney becomes bankrupt, your power of attorney is not automatically cancelled. It is only cancelled if the bankruptcy makes your attorney unfit to carry out their duties.
If bankruptcy makes your attorney unfit to carry out their duties, your back-up attorney, if you named one, would take over authority to act on your behalf and your Power of Attorney document would remain effective
You should give written notice when a power of attorney is cancelled or when an attorney's authority is ended. Any person or business that deals in good faith with the attorney can rely on the Power of Attorney if it does not know that the document has been cancelled.
f) Time: A Power of Attorney document can be for a specific time or task.When the time or task is complete, the power of attorney ends. Where a specific power of attorney is given to complete a specific task authority under the power of attorney ends when the task is completed.
For example, you might give someone a specific power of attorney to complete the sale of a house. The attorney's authority under that document would end when the sale of the house is completed.
In another example, you might give a general power of attorney while you are away on vacation. The attorney's authority under that document ends on your return.
If a specific power of attorney authorizes the attorney to act on an ongoing basis, the power continues until it is cancelled in one of the ways outlined above.
A general power of attorney may continue indefinitely or it may be for a specific time.
No. A Power of Attorney only has to be registered when it gives authority to deal with land. Then it must be recorded at the Land Registration Office where the land is located.
Power of attorney gives someone else power to act for you. Most people who are appointed under a Power of Attorney are honest. They try to do a good job and live up to their obligations.
There is a risk that the attorney could abuse that power because they:
Banks and other financial institutions rely on the written Power of Attorney document. If you give your attorney power to withdraw cash from your bank accounts, to deal with your property, or to buy and sell investments on your behalf, the bank will not usually contact you to find out if you approve of what the attorney is doing.
Here are some things you can to help prevent abuse of a power of attorney:
There are a number of things you can do, depending on your situation and on your relationship with your attorney:
Last reviewed: April 2018
The Public Trustee Office is an independent provincial office that has the authority to manage the financial and health care needs for certain people when no one else is willing, suitable, or able to act.
The Public Trustee Act authorizes the public trustee to act as guardian, custodian or trustee of a person who is unable to care for their own affairs. It also authorizes the public trustee to act as executor or administrator of the estate of a person who has died.
You will find more information on the Nova Scotia Public Trustee website at gov.ns.ca/just/pto/.
If you suspect that you may be a target of fraud, or if you have already sent funds, don't be embarrassed - you're not alone. If you want to report a fraud, or if you need more information, contact The Canadian Anti- Fraud Centre
Fraud is intentional deception. Fraud is a crime. Some types of fraud are referred to as scams or schemes. Fraud affects all age groups. Fraud usually causes financial loss for the victim. The internet has created new opportunities for fraudsters.
The person who is deceived is generally called the victim or mark. The person who does the deceiving is generally called a fraudster, a scam artist, a perpetrator, or a thief.
Fraud can be very profitable for criminals. Fraudsters are hard to catch because they are skilled at what they do, they manage to disappear before being caught, and they may not even be located in Canada.
Victims are often too embarrassed to tell anyone, and so many frauds do not get reported.
Consumer fraud is intentionally deceiving a person who buys a product or a service. For example, you are deceived into paying money for something that does not exist, is not accurately described, or is of little or no value. Another example is being deceived into providing information that allows a fraudster to steal from you.
Consumer fraud happens when a person, a group, or a company takes advantage of individuals, usually for monetary gain.
Fraudsters approach their victims in many different ways:
They may attract you with a TV commercial, a magazine article, a newspaper advertisement, a website, a survey, or through social media.
A fraudster can cause you financial loss without having to make any personal contact with you. They are always thinking of new and different scams to take advantage of people.
Unfortunately there are so many types of scams they cannot all be listed here, and it is also difficult to guess what the next new scam will be. Examples of some of the more common consumer fraud scams include:
Identity Theft: The fraudster uses your personal and financial information to steal from you. This is the top fraud across North America.
Advance Fee Fraud: You are asked to make a payment or to give your personal or financial information before you receive a product or service.
ATM, Credit Card, and Debit Card Fraud: The fraudster uses your pass codes and card numbers to withdraw cash from your accounts or to pay for purchases with your credit.
Counterfeiting: The fraudster pays for purchases with fake money, cheques, or money orders.
Door to door frauds: The fraudster comes to your door and says “I was driving by and noticed that your roof needs repair.” Or “I have some left- over materials I can sell you at cost.” Or “I’ll need a 50% down payment to purchase materials.” Always check with the Better Business Bureau or a neighbour who has used them before hiring any person to do work on or in your home.
False Charities: The fraudster pretends to be a charity (sometimes by using a similar name, thanking you for your past support, or by trying to take advantage of a disaster such as an earthquake or flood). Sometimes the fraudster will go door to door pretending to collect donations for a charity.
Impersonation: The fraudster pretends to be someone or something else for personal gain; for example, someone pretends to be a grandchild who needs money.
Investment Fraud: The fraudster misleads you into giving money for business ventures that promise unrealistic profits.
Misleading Job Opportunities: The fraudster promises a large income for easy work, a fee or a start-up investment, or an almost guaranteed job after an expensive course.
Online Auctions, Lotteries, and Contests: The fraudster tricks you into purchasing items of little or no value, or into buying tickets or prizes that do not exist or have little value.
If it sounds too good to be true, it usually is. Here are some things you can look for that will sometimes point to a scam:
Identity theft is getting your personal information and using it to steal from you. Identity theft is now the fastest-growing fraud.
Personal information might include your address, date of birth, social insurance number (SIN), credit card or bank card numbers, personal identification numbers (PINS) and pass codes, and driver's license numbers. If identity thieves get your personal information, they may:
In extreme cases, identity thieves not only collect personal information about you, but they may also watch you. They learn about your friends and family members, and learn your personal weekly routine. They they decide how best to take advantage of you. Sometimes they pretend to be stranded family members who urgently need money. Sometimes they pretend to be you and arrange to mortgage or sell your house.
Here are some of the ways identity thieves can get your personal information. They may:
The best way to protect yourself from fraud is to be informed and alert.
If you suspect that you are the target of fraud, do not deal directly with the person you think is trying to deceive you. Do not agree to provide further money to get your first payments back or to keep a deal open.
You can contact your local police or RCMP detachment and the Canadian Anti-Fraud Centre. You may also report the crime online through some of the websites listed at the end of this section under "More Information".
You should also contact Equifax Canada and TransUnion Canada. They are credit reporting agencies. They can place an alert on your account so creditors must call you before opening any new accounts or changing your existing accounts. Also, ask them to send you a copy of your credit report so you can see if an identity thief has opened any new accounts or debts in your name. The Financial Consumer Agency of Canada has information about credit reports, and credit reporting agencies.
If you have been the victim of fraud, you must contact the financial institutions and credit card companies where you have your accounts. Tell them what happened and have them freeze your accounts. If the fraud has affected your account, it must be closed. You will need to open new accounts.
You should contact the police or RCMP to report that you have been the victim of fraud, no matter how small your loss may be. They may start an investigation.
You should also contact Equifax Canada and TransUnion Canada. These credit reporting agencies can place an alert on your account so creditors must call you before opening any new accounts or changing your existing accounts. The Financial Consumer Agency of Canada has information about credit reports, and credit reporting agencies.
Report the fraud to the Canadian Anti-Fraud Centre.
If your government-issued documents were lost or stolen, contact the department, explain what happened, and ask for new documents. You will likely need to do that in writing. Contact Service Canada at 1-800-206-7218 if your social insurance number (SIN) has been stolen.
If you think your mail is being stolen or redirected, contact Canada Post at 1-800-267-1177 or canadapost.ca.
For more information, including ways to protect yourself from fraud:
Report suspicious or unsolicited emails (e.g. phishing, malware, deceptive marketing, etc.) to the Spam Reporting Centre
Industry Canada's Office of Consumer Affairs is a federal government department that provides tips to consumers about how to protect themselves in various consumer situations. Website: consumerinformation.ca
Competition Bureau of Canada: An independent, federal government agency concerned about competitive markets and consumer information. It investigates complaints and enquiries from the public about consumer issues such as deceptive product labelling and price fixing. Website: competitionbureau.gc.ca
Royal Canadian Mounted Police, Scams and Frauds page: rcmp-grc.gc.ca
Last reviewed December 2017