When a lawyer encounters a document executed or to be executed pursuant to a Power of Attorney, the lawyer must ensure
a) that the donor of the Power of Attorney can or could legally delegate the powers listed in the Power of Attorney1;
b) that the wording of the Power of Attorney gives the Attorney the authority to execute the specific document2 and
c) that the Power of Attorney is properly recorded in order to be effective3.
A lawyer must ensure that any Affidavit sworn by a person acting as an Attorney pursuant to a Power of Attorney contains only information known to the Attorney personally and is executed by the Attorney in their personal capacity, and not in their capacity as Attorney4.
A lawyer must ensure that the execution of the Power of Attorney is properly proven5.
A lawyer meeting with a donor to execute a Power of Attorney or meeting with an Attorney to execute a document pursuant to a Power of Attorney must confirm the identity of the donor/Attorney6.
A lawyer who instructs someone else, wherever they are located, to meet with a donor to execute a Power of Attorney, or to meet with an Attorney to execute a document pursuant to a Power of Attorney, must also instruct the staff member/lawyer to confirm the identity of the donor/Attorney and should obtain written confirmation by way of copies of the identification used or by Certificate, Declaration or Affidavit that the staff member/lawyer has done so7.
- Infants and mentally incapacitated persons cannot give a valid Power of Attorney and generally persons who stand in a fiduciary position, such as Trustees, Executors, Directors and Officers of companies etc., cannot delegate to others activities which involve the exercise of judgment or discretion for which they are responsible by virtue of their position, though they can delegate specific acts about which a decision has already been made. Thus, a company, following a decision of the Board of Directors, may give a person who is neither an Officer nor a Director a Power of Attorney to execute a specific document or kind of document on behalf of the company (e.g. Banks often appoint attorneys to execute Releases of Mortgage). As always there are exceptions to the general rule. See, for example: “Fiduciary Duties: Obligations of Loyalty and Faithfulness”, Ng, Michael, Canada Law Book, 2015, vol 2, c.9; “Fiduciary Law”, Rotman, Leonard, Thomson Carswell, 2005.
- If the donor is incapacitated at the time the Attorney is acting, the Power of Attorney must not only grant the Attorney the authority to do what is being done but also must comply with s. 3 of the Powers of Attorney Act, R.S.N.S.1989, c.352 in order to be effective.
- For non LR parcels see s. 24 of the Registry Act, R.S.N.S. 1989, c.392; for LR parcels see s. 72 of the Land Registration Act, S.N.S. 2001, c. 6
- An Affidavit is “ A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the person making it, taken before a person having authority to administer such oath or affirmation”, Black’s Law Dictionary, 5th ed. It follows that a person cannot swear an affidavit pretending to be someone else: i.e., the Attorney cannot swear the Affidavit as if the Attorney is the donor. The Attorney can only swear to facts within the Attorney’s own knowledge.
- See Land Registration Act, S.N.S. 2001, c. 6, s. 79 and Registry Act, R.S.N.S. 1989, c.392, ss. 30 – 35.
- See Real Estate Standard 4.4: Identification.
- See Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, c. 6, s. 6.1; Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c.28, s 4.13.
- If a lawyer is examining a chain of title for migration purposes and comes upon an historical properly executed and recorded Power of Attorney which does not contain a provision stating that it may be exercised when the Donor is incapacitated, unless there is evidence to the contrary or the lawyer is personally aware that it was not the case, it is reasonable for the lawyer to assume that the Donor was competent when the Power was exercised.
- A lawyer should never instruct a non-lawyer to meet with a donor to execute a Power of Attorney unless the lawyer has first explained to the donor the effect and ramifications of giving the Power of Attorney and the lawyer is satisfied that the donor understands the risks as well as the benefits of the document. The lawyer should put written confirmation in the file that this conversation has taken place.
- If the donor owns real property, it is generally good practice to arrange for the donor of a Power of Attorney to swear an affidavit of marital status at the time when the Power of Attorney is executed. Then, if required, the Attorney need only provide evidence of the marital status between the date of the Power of Attorney and the date of the document which the Attorney is executing.
- When an Attorney is swearing an affidavit confirming the marital status of the donor of the Power of Attorney, the lawyer should ensure that Attorney states the facts upon which the Attorney is relying to reach the conclusion as to marital status so that the lawyer reviewing the affidavit can determine whether the Attorney has the appropriate familiarity with the donor or the situation in which the donor lives to be reliable.
- When a Deed removing all of the donor’s interest in a property is executed pursuant to a Power of Attorney and the Power of Attorney is recorded in the property’s parcel register, the lawyer registering the Deed should remove the Power of Attorney from the parcel register when the lawyer registers the Deed by requesting the removal by operation of law on the Form 24 attached to the Deed. The Deed must be then be forwarded in hard copy to the relevant Land Registration Office.
Land Registry Resource Material, Access Nova Scotia, Property Online
Amended by Council on November 23, 2018