While it is true that many Canadian provinces recognize a POA that has been created in another province to some degree, that doesn’t make it automatically valid or easy to use everywhere. There may be differences in legislation, terminology, or execution requirements that mean it may not be accepted without additional review, especially where banks, healthcare institutions, and land registries are concerned, as these often follow local rules and internal policies.
But why isn’t a power of attorney in Alberta guaranteed to be valid in other Canadian provinces? Let’s take a closer look:
Power of Attorney and provincial validity
Although estate planning documents may sometimes be recognized outside the province where they were created, powers of attorney are governed by varying provincial legislation:
· Ontario
Governed by the Substitute Decisions Act and uses the terminology “Power of Attorney for Property” and “Power of Attorney for Personal Care.”
· British Columbia
Governed by the Power of Attorney Act and Representation Agreement Act, and uses the terminology “Enduring Power of Attorney” and “Representation Agreement.”
· Alberta
Governed by the Powers of Attorney Act and Personal Directives Act, and uses the terminology “Enduring Power of Attorney” and “Personal Directive.”
· Quebec
Governed by the Civil Code of Quebec and uses the terminology “Protection Mandate.”
· Manitoba
Governed by the Powers of Attorney Act and Health Care Directives Act, and uses the terminology “Enduring Power of Attorney” and “Health Care Directive.”
· Saskatchewan
Governed by the Powers of Attorney Act and Health Care Directives Act, and uses the terminology “Enduring Power of Attorney” and “Health Care Directive.”
· Nova Scotia
Governed by the Powers of Attorney Act and Personal Directives Act, and uses the terminology “Enduring Power of Attorney” and “Personal Directive.”
What are the main differences between the provinces?
Often creating practical problems, below are some of the main differences between the governing legislation and terminology used in Canada’s provinces:
Financial Powers of Attorney
· Terminology – Power of Attorney for Property is used by Ontario, Enduring Power of Attorney is used by provinces such as Alberta and BC, and Protection Mandate is used by Quebec. Although these documents may function in a similar way, they are legally distinct.
· Execution requirements – in some provinces, either one witness or two may be required, while in Quebec, a protection mandate may be made by notarial act or in the presence of witnesses.
· Springing powers – in some provinces, POAs can be structured to take effect upon incapacity or another triggering event, while others may have different rules about when the document takes effect.
· Reporting requirements – the attorney may be required to keep records and accounts in certain provinces, while in others, this may depend on the terms of the document or the applicable legislation.
Healthcare Powers of Attorney
· Terminology varies – different terms are used to describe this type of planning document in different provinces.
· Scope differs – financial and healthcare authority may be dealt with differently depending on the province, and some provinces require separate documents for different types of decisions.
· Living will integration – in certain provinces, advance directive provisions may be integrated into healthcare planning documents, while in other provinces, they are treated as separate documents.
What should you do if you move to a different province?
If you move to a new province, you should have your power of attorney, healthcare directive, and will reviewed by a lawyer in that province. In some cases, it may be advisable to create a new power of attorney and a new healthcare directive that comply with local requirements. You should also notify your attorney and carefully review whether the old enduring power of attorney in Alberta should be revoked, replaced, or kept in place for certain Alberta assets.
If you own property in more than one Canadian province, you’ll need to ensure that you’re compliant with all relevant local regulations. The best way to do this, whether you have properties in other provinces or are simply moving to a different province, is to sit down with an experienced wills and estates lawyer who can guide you and remove the guesswork.
