A power of attorney is one of the most important documents you can have to protect you and your loved ones in the event of an unexpected emergency. In this article, we’ll share the key information you should know about making a power of attorney in Manitoba and take you through the process of making legal power of attorney documents in Manitoba.
What Exactly Is A Power Of Attorney?
In Manitoba, most people make two different types of POA documents: an enduring power of attorney and a healthcare directive. Together, these legal documents give a person(s) you trust the power to take care of your medical and financial matters in the event you are medically unable to do so yourself.
What Is An Enduring Power Of Attorney in Manitoba?
An enduring power of attorney in Manitoba is a document that you create to give someone the authority to make decisions related to your financial affairs and property if you lose mental capacity. This ability is given in advance through your POA, by you, the “grantor”, “donor”, or “maker” of the document. Your attorney is given the authority to make decisions for you and perform certain tasks just like you would if you were capable. This may include tasks like paying your bills, maintaining any property you own, managing your investments, and collecting or paying debt.
Is An Enduring Power Of Attorney The Same As Power Of Attorney?
A power of attorney can be temporary or enduring, and the key difference is when the attorney’s powers come to an end.
Under an enduring power of attorney, an attorney’s power continues if the donor loses capacity. Generally, an enduring power of attorney comes into effect when:
- The document is properly signed and witnessed
- On a specified date
- Once a certain event occurs (such as when the donor loses capacity)
With Willful, your enduring power of attorney comes into effect when you lose capacity and no longer have the ability to make decisions about your affairs.
On the other hand, a limited power of attorney is in effect while the donor is fully capable and ends if the donor becomes incapacitated. If a power of attorney document does not contain a clause that clearly states the attorney’s power continues after the donor loses capacity, it will be a limited power of attorney. A temporary power of attorney can also be created by granting a power for a specific period of time (for example while you’re travelling) or until the attorney completes a specific task. Willful does not offer the ability to create limited powers of attorney.
It’s important to be aware that without a valid enduring power of attorney in place, if you were to lose capacity due to an illness or injury, someone would have to apply to the court to manage your finances and property. If no one is willing or able to take on this role, the Public Guardian and Trustee of Manitoba would do so.
A key similarity between enduring and limited power of attorney documents is that they must be created while the donor is still mentally capable and can understand the authority being given to the attorney. This is one of the reasons why it’s important to create your power of attorney documents long before you think you’ll ever need them.
Why Do Manitoba Residents Need An Enduring POA?
Nobody knows if and when they’ll ever need to use an enduring power of attorney but it will offer you protection in the event of an unexpected emergency. If you become medically incapacitated, having an EPOA in place will enable your attorney to step in and make important decisions for you and act on your behalf. Your attorney can do a variety of tasks like paying your bills and rent, maintaining your property, and even selling your house if necessary. Essentially your attorney will be able to take care of anything that may come up, on your behalf. By having an EPOA in place, you’ll avoid having to wait for someone to be appointed by the court to act on your behalf, which helps to keep your property and finances in good shape if there comes a time you’re unable to manage them yourself.
What Is A Health Care Directive In Manitoba?
Your health care directive is a document that appoints someone to make decisions about your personal care and outlines your personal healthcare preferences. Your health care directive comes into effect if you become unable to communicate yourself.
The person you appoint in your health care directive is called a “proxy”. Most people choose a spouse, relative, or close friend – someone trustworthy, who has good judgement and is familiar with your wishes.
The government of Manitoba offers a health care directive form that you can fill out and sign to assign a proxy with no witness required. The form doesn’t provide specific instructions about what to include in your care instructions. If you choose to create your health care directive with Willful, we’ll walk you through the important decisions to include.
What Are Living Wills In Manitoba?
A living will typically refers to a document that contains your wishes for medical treatment if incapacitated. Manitoba does not use the term living will when referring to this legal document. Instead, you make these decisions in your health care directive. Note: a living will is different from your last will and testament.
Why Do Manitoba Residents Need A Health Care Directive?
Health care directives aren’t just for seniors or individuals considering end-of-life care. Life is unpredictable and none of us know when a medical emergency might arise. If the unexpected happens, having a health care directive provides peace of mind knowing that decisions regarding your health medical treatment are in the hands of someone you trust. You won’t have to worry about having to wait to receive medical treatment until someone can be appointed by the court. Beyond medical care, it can even include things like who you’d like to live with, where, and other personal non-financial decisions. Documenting your decisions can also benefit your loved ones, by reducing the stress and burden of having to navigate making difficult decisions on your behalf.
How Do I Get A Power Of Attorney In Manitoba?
You might be surprised to learn that it’s actually quick and simple to make your enduring power of attorney and health care directive in Manitoba. Here are the 3 main ways to get a legal POA:
- Online POA platforms: Yep! It’s possible to make legal power of attorney documents online. Not only is it convenient, but also affordable! Online platforms like Willful guide you through every step of the process to create a document that accurately reflects your wishes. With Willful, your final document also includes instructions specific to Manitoba for witnessing and signing, to ensure your document is legally-binding.
- Power of attorney forms: These are typically fill-in-the-blank forms found at an office supply store or bookstore. They are often cookie-cutter and limited in flexibility. These forms may not cover all your wishes and only reflect one way of creating a power of attorney document. That being said, they can be a good free or low-cost option. If this is the best option for you, be sure to find a form that meets your needs and complies with the legal requirements in Manitoba.
- Lawyer-drafted power of attorney: Lawyers are able to offer the highest level of customization and build you a document that can cover any complex requests you may have. Lawyers are a great resource if you need legal advice. However, a lawyer-drafted POA can be very expensive and most Canadians don’t need that level of complexity.
Do You Need A Lawyer For A Power Of Attorney In Manitoba?
You might still be skeptical or surprised that you can make a legal power of attorney without a lawyer. But it’s true! Here’s what makes a power of attorney legally valid in Manitoba:
- The person making the power of attorney (the donor) is at least 18 years old
- The donor must be of sound mind (can understand the consequences of their decisions and the powers being granted to the attorney)
- A physical hardcopy in writing (it can’t be a digital copy, audio or video recording)
- Signed by the donor in the presence of a qualified witness (or acknowledge their signature in their presence)
- Properly witnessed by one of the qualified professionals listed in the Powers of Attorney Act
To be a valid enduring POA it must also clearly state when the attorney’s powers will come into effect, what those powers are, and that they will continue in the event the donor loses capacity.
The final step to making it official is signing the power of attorney document(s) in front of a qualified witness who must also sign it. If you’re creating an enduring power of attorney in Manitoba, the witnessing stage is where you will require either a lawyer or another person qualified to witness EPOA documents. Keep reading for more information on who can witness enduring power of attorney documents in Manitoba. The rules around witnessing are unique to Manitoba.
Although our neighbours to the south use the term attorneys to refer to lawyers, in Canada your attorney does not need to be a lawyer (and in fact, probably won’t be). People typically choose their spouse, a close relative or trusted friend to act as their attorney. Keep reading for more information on choosing an attorney.
Who Can Witness A Power Of Attorney In Manitoba?
In Manitoba, there are designated professionals who must witness an enduring power of attorney. This includes:
- A lawyer entitled to practice in the province
- A qualified medical practitioner in Manitoba
- A judge, justice of the peace or magistrate in Manitoba
- A notary public for Manitoba
- A police officer in the RCMP or municipal police force in Manitoba
- An individual registered to solemnize marriages in Manitoba
For a full list of qualified witnesses in Manitoba, please see section 11 of the Powers of Attorney Act. Regardless of who you choose from this list, the attorney appointed in your EPOA and their spouse or common-law partner cannot be a witness. Note that a commissioner of oaths cannot witness Enduring Powers of Attorney documents.
You might be wondering why these rules around who can witness a power of attorney document exist in Manitoba. These rules were created to protect the donor from someone trying to abuse the power available under an EPOA by ensuring the document was made properly. The assumption is that the listed professionals have a vested interest in making sure the donor is mentally competent and acting voluntarily.
Keep in mind that if your witness is a lawyer or notary, they are only confirming the execution of the document and will sign an Affidavit of Execution, a document included with your Willful Enduring Power of Attorney. This means that they cannot provide any legal advice about the content of the EPOA. Helpful tip: if bringing your documents to a lawyer or notary, clarify that you would like them to witness the execution of the documents only, not provide legal advice about the content of the enduring power of attorney. Instructions for completing this process are included with your Willful EPOA and Affidavit of Execution documents.
Does A Power Of Attorney Need To Be Notarized In Manitoba?
We often get asked whether a power of attorney must be notarized. While you can choose a notary to witness your enduring power of attorney, you don’t need to – you can choose from any of the professionals listed in the Powers of Attorney Act. Once you’ve signed and witnessed your enduring power of attorney, it’s official! You can give yourself a pat on the back for completing this very important document.