Most complete estate plans in Newfoundland & Labrador have at least three Core Instruments, namely, a Last Will and Testament, an Enduring Power of Attorney, and an Advance Health Care Directive.
An Enduring Power of Attorney only operates while you are living and typically appoints a person to make decisions about your property and finances if you become mentally incompetent and therefore can’t make them yourself.
Like Wills, Powers of Attorney have been around for some time. Historically they were often used to give legal authority by one person to another to care for their affairs in the absence of the donor of the power.
At common law a power of attorney was automatically revoked in the event that the donor lost their mental competence or legal capacity.
Powers of Attorney (in particular limited powers of attorney), are still sometimes used for this purpose (e.g. to give a family member the authority to sign for you on a real estate transaction, or to access a bank account).
The common law rule that a power of attorney is revoked when a person loses their legal capacity though has been modified by statute in most jurisdictions so that a power of attorney can endure beyond a person’s loss of capacity. In Newfoundland & Labrador the relevant legislation is the Enduring Powers of Attorney Act, RSNL 1990, c E-11.
This modification allows Enduring Powers of Attorney to be used in estate planning to appoint a person or persons to handle your property and finances in the even that you are still living but unable to do so yourself.
An Enduring Power of Attorney conveys significant legal authority, and can be easily abused if its terms are not carefully considered. A lawyer can help you plan and prepare your Enduring Power of Attorney and any other estate documents.