Did you know? Under common law, powers of attorney died the moment the person who signed them lost mental capacity — precisely when they were needed most. The province fixed that with the Enduring Powers of Attorney Act, RSNL 1990, c. E-11, which lets the authority survive that loss when the document is worded and witnessed correctly.
“Correctly” is doing a lot of work in that sentence. Powers of attorney are refused by banks, land registries and foreign institutions every week over details that take thirty seconds to get right at the signing table: the wrong witness, a missing clause, an attorney who was still under the age of majority.
This article covers the two types used across Newfoundland and Labrador, what the legislation requires when creating an enduring power of attorney, the duties it places on the person you appoint, how to revoke one, and what has to happen before the document can be used outside Canada.
Need help with document apostille/legalization/authentication/attestation — and/or criminal record check in Canada? Contact us via our form, call us at +1-613-501-0555 (WhatsApp available) or +1-800-857-1215 (toll-free), fax us via 1-844-786-2001, or text us at info@lsccanada.ca.
PLEASE NOTE! If you urgently need to use a power of attorney in another country, we have a way to quickly legalize this document regardless of the Canadian province in which it was issued.
The fastest way to obtain an apostille is in Ontario — this can be done within a couple of days, compared to weeks in Alberta, British Columbia, Quebec, and so on. But to legalize a power of attorney in Ontario, does this document have to be issued in that province? Yes, but it is also acceptable to obtain an apostille for a notarized copy of this document made in Ontario. This makes it very easy and legal to speed up the possibility of using this document in any country in the world, literally dozens of times over.
What Powers of Attorney Cover — and What They Do Not
A power of attorney is a legal document that gives another person the authority to act on your behalf in relation to your property and finances. Powers of attorney governed by this legislation deal only with management of your estate, which is the statutory way of saying money and property.
The Two Types of Power of Attorney
Two types are in ordinary use, and the type of power of attorney you sign decides everything that follows:
- A general power of attorney operates while you have legal capacity and ends automatically if you lose it, whatever your intentions were. It suits a defined period — a transaction that must close while you are abroad, or a stretch of illness.
- An enduring power of attorney continues after capacity is lost. It may stand as its own document or sit inside a general one, provided the wording makes the continuation clear.
Both powers of attorney authorize the same kinds of dealings: operating a bank account, paying bills, managing property, signing on your behalf with financial institutions.
Medical Decisions and Estate Matters Sit Elsewhere
Two gaps catch people out. First, financial authority carries no power over treatment decisions, which require an advance health care directive under separate legislation. Second, the authority ends at death — from that point your executor administers the estate under your will. A complete estate planning file in the province usually holds all three: a will, powers of attorney, and a directive.
Requirements for Creating an Enduring Power of Attorney
Section 3 of the Enduring Powers of Attorney Act is short, and every clause in an enduring power of attorney depends on it.
Signing and Witnessing
The document must be signed by the donor and witnessed by someone who is neither the person named as attorney nor that person’s spouse or cohabiting partner. The Act defines a cohabiting partner as someone who has lived in a conjugal relationship outside marriage for at least a year, so a long-term partner of the person you appoint is disqualified just as a married spouse would be.
Get this wrong and the document is not automatically worthless, but the fix is expensive: a person named as attorney under powers of attorney that were not validly witnessed has to apply to the court for letters of guardianship instead.
Who Can Act as Attorney
- The attorney must be 19 years of age or older — the age of majority in the province
- An attorney cannot appoint another person to perform their functions or exercise their powers
- More than one person may be named, and the document should say whether they act jointly or separately
- Naming an alternate is wise, since a court application is otherwise needed if your first choice cannot act
The Wording That Makes It Enduring
An enduring power of attorney must contain a provision stating, expressly or by implication, that it may be exercised during the legal incapacity of the person who granted it. No particular form of words is prescribed. That flexibility is a trap rather than a convenience — vague drafting invites a bank to refuse the transaction, so the clause should be unambiguous.
Duties the Legislation Imposes on Your Attorney
Appointing someone is not simply handing over a chequebook. Powers of attorney carry real obligations for the person who accepts them.
Best Interests and Trustee Status
An attorney must exercise their powers in a manner that protects the best interests of the donor, and is liable to compensate for any loss caused by a failure to do so. The Act goes further and treats an attorney as a trustee of that person’s property — a demanding standard borrowed from trust law. Where an attorney proves they acted honestly and reasonably, the court may relieve them of personal liability in whole or in part.
Accountability
Anyone with an interest in the estate may ask the court to order an attorney to file accounts for a transaction, and the public trustee counts as such a person. The public trustee can also apply to have an attorney replaced where that would serve the best interests of the person who granted the authority.
Protection for Third Parties
If an enduring power of attorney has been revoked or has become invalid, but the attorney acts in good faith without knowing, the law treats them as having had the authority to act. The same protection extends to a bank or a buyer who deals with that attorney without notice of it.
Need help with document apostille/legalization/authentication/attestation — and/or criminal record check in Canada? Contact us via our form, call us at +1-613-501-0555 (WhatsApp available) or +1-800-857-1215 (toll-free), fax us via 1-844-786-2001, or text us at info@lsccanada.ca.
Changing or Revoking Power of Attorney Documents
While you still have legal capacity, you may revoke or terminate the document at any time, and you may change the person named in it. Once capacity is gone that door closes, and only the court can substitute an attorney.
Practical points worth observing:
- Put the revocation in writing and date it
- Give notice to the former attorney, since the liability rules turn on what they knew
- Notify banks and other financial institutions holding your accounts, and retrieve copies where you can
- Review your powers of attorney alongside your will after a marriage, separation, death or move to another province
How to Get Power of Attorney Documents Apostilled
If your attorney has to deal with a bank, notary or land registry in another country, the paperwork needs an apostille — the certificate confirming that the signature and seal on it are genuine.
Step One: Notarization
Private documents are not eligible on their own. Powers of attorney must first be notarized by a Canadian notary public, who confirms the signature and applies a seal the issuing authority can verify against its register.
Step Two: The Competent Authority
The province has no apostille office of its own. Documents issued or notarized in the province go to Global Affairs Canada, which issues apostilles through its Authentication Services Section in Ottawa for federal records and for those provinces and territories without their own authority. If the same document was notarized in Ontario, Alberta or Saskatchewan instead, it belongs to that province’s office — the notary’s location decides, not yours.
Why Documents Come Back
- Photocopies instead of originals bearing a wet seal
- A notary whose specimen signature is not on file with the authority
- Pages that are not securely fastened together
- Laminated or coated paper that cannot take a stamp
- No certified translation where the receiving country requires one
Need Help With a Power of Attorney Apostille?
Drafting is a job for a lawyer. Moving finished powers of attorney through notarization, authentication and — where the destination has not joined the Hague Convention — consular legalization is a separate exercise with its own rules and its own ways of going wrong.
Since 2009, Legalization Service Centre has assisted clients with apostille, authentication and legalization of Canadian documents. With more than 15 years of experience, our team handles power of attorney files, corporate records and personal certificates for clients across the country.
Get Your Documents Ready for International Use
An enduring power of attorney protects you at the point where you can no longer protect yourself — but only if it was signed, worded and executed the way the legislation requires, and only if it is recognized wherever it has to be used.
Whether you need to arrange notarization, obtain an apostille, order a certified translation, or request a Canadian criminal record check, Legalization Service Centre can guide you through every stage.
Need help with document apostille/legalization/authentication/attestation — and/or criminal record check in Canada? Contact us via our form, call us at +1-613-501-0555 (WhatsApp available) or +1-800-857-1215 (toll-free), fax us via 1-844-786-2001, or text us at info@lsccanada.ca.