How to Start Making a Power of Attorney in Saskatchewan

The short answer

In Saskatchewan, an enduring power of attorney is witnessed in one of two ways: by a lawyer with a legal advice and witness certificate, or by two adults with capacity who are not the attorney or family members, with witness certificates — and the certificate is part of validity, not an optional extra. The governing law is The Powers of Attorney Act, 2002, in force April 1, 2003.

This guide is process only. It walks Saskatchewan's own execution and witness rules, as the Act and the Saskatchewan government page state them. It gives no legal advice, and it does not advise you on who should be attorney, what powers to include, or whether your situation needs a lawyer. Capacity is stated only as the process gate the Act sets; this guide never assesses whether a person meets it. This guide does not re-summarize the national power-of-attorney guide: every rule below is Saskatchewan's own.

What the document is

An enduring power of attorney is a power of attorney stating that it continues even if the grantor becomes incapacitated. A grantor may appoint a personal attorney, a property attorney, or both. There are two timing types: immediate, or contingent on a future date or event. The grantor must be an adult with capacity to understand the nature and effect of the document, under section 4 of the Act.

Signing

Under section 11, the document must be in writing, dated and signed by the grantor. If the grantor cannot sign, it may be signed at the grantor's direction by an adult with capacity, other than the attorney or a family member of the grantor or attorney, in the presence of the grantor and a witness. In that case the grantor must acknowledge the signature before a witness who is an adult with capacity and not the attorney or a family member of the grantor or attorney, and the witness signs in the grantor's presence.

Witnessing: two routes

Section 12 gives two alternative routes, and either suffices:

• Lawyer route. Witnessed by a lawyer and accompanied by an independent legal advice and witness certificate in the prescribed form.
• Two-witness route. Witnessed by two adults with capacity who are not the attorney or family members of either the grantor or the attorney, accompanied by witness certificates in the prescribed form.

The Saskatchewan government page states this identically. The certificate is part of validity, not an optional extra. Do not carry another province's witness count across the border: Manitoba needs one witness from a closed professional list, and New Brunswick needs a lawyer present for any property power.

The prescribed forms

The government-approved forms linked from the Saskatchewan government page are:

• Form A — Enduring Power of Attorney Appointing a Personal Attorney
• Form B — Enduring Power of Attorney Appointing a Property Attorney
• Form C — Enduring Power of Attorney Appointing a Personal and Property Attorney
• Form E — Non-lawyer Witness Certificate

The lawyer route uses a legal advice and witness certificate in the prescribed form. Its form letter and contents beyond its name could not be verified on an opened official page.

Who can be attorney

The attorney must be at least 18 and mentally competent. A property attorney cannot be an undischarged bankrupt. A person convicted within the last 10 years of a Criminal Code offence of violence, theft, fraud or breach of trust cannot be an attorney unless pardoned, or unless the conviction was disclosed to and consented to by the grantor while the grantor had capacity. A person in the business of providing personal or health care services to the grantor for compensation cannot be an attorney. The attorney may be an individual or a corporation, and need not be a Saskatchewan resident.

Oversight: the Public Guardian and Trustee

The Public Guardian and Trustee is not a maker or registrar of the document. Its role is oversight and accounting. Under the Act, it may direct an attorney to provide an accounting in the prescribed form, investigate the accuracy of an accounting, and apply to court where an attorney refuses or gives an incomplete accounting. Where the attorney charges a fee and no other recipient is named, the Public Guardian and Trustee receives the annual accounting. The attorney should keep records from the start.

Powers made elsewhere

Saskatchewan recognises enduring powers of attorney made outside the province if they are valid where they were made. That does not change the execution rules for a document made in Saskatchewan: use the Saskatchewan forms and the Saskatchewan witnessing routes.

What the opened pages do not state

No registration or filing of the power of attorney with the Public Guardian and Trustee or any registry is stated on the opened pages. No fee is stated for the prescribed forms. No statement is made about whether the attorney must sign an acceptance. The contents of the lawyer certificate form and the non-lawyer witness certificate beyond their names are not stated. No land-titles filing rule is stated.

Related guides:

• How to Start Making a Power of Attorney in Canada — the national power-of-attorney guide, which covers Ontario, British Columbia and Alberta and states none of Saskatchewan's rules.
• How to Apply for Probate in Saskatchewan — Saskatchewan's probate process, which is where an estate is administered after death.
• How to Make a Will in Canada — the national wills guide, which routes Saskatchewan's will rules.
• How to Start Making a Power of Attorney in Manitoba — Manitoba's one-witness rule from a closed professional list, for comparison.
• How to Start Making a Power of Attorney in New Brunswick — New Brunswick's lawyer-presence rule for property powers, for comparison.
• How to Order a Death Certificate in Canada — the death certificate the executor needs as proof of death.

How the power ends

A grantor can cancel a power of attorney by giving written notice of the cancellation to the attorney. Before cancelling, the grantor must be able to understand the nature and effect of the power of attorney and the effect of ending it. The Saskatchewan government also advises notifying all businesses and agencies dealing with the attorney that the power of attorney has been cancelled.

Other circumstances bring the power to an end as well: the attorney provides a written resignation to the grantor or, if the grantor lacks mental capacity, to the other attorneys named in the document or, if there are no other attorneys, to the grantor's most immediate and available family member; a condition or date outlined in the document for bringing it to an end occurs or arrives; the grantor or the attorney dies; the grantor becomes mentally incapacitated, if the power of attorney is not an enduring one; the attorney becomes mentally incapacitated; the attorney no longer meets the other initial requirements, for example by going bankrupt; the grantor and the attorney separate or divorce, if the attorney is the grantor's spouse; the court appoints a personal or property guardian for the grantor; an interested party challenges the attorney in court and a judge revokes the attorney's authority; or the grantor is certified incompetent, the Public Guardian and Trustee is notified, and the Public Guardian and Trustee decides to take the grantor on as a dependent adult client by signing an Acknowledgment.

Sources

• Government of Saskatchewan, Creating and Ending a Power of Attorney: cancelling a power of attorney by written notice to the attorney, the capacity needed to cancel, and the other circumstances that bring a power of attorney to an end
• Government of Saskatchewan, Powers of Attorney for Adults — the personal and property attorney types, the immediate and contingent timing types, the two witnessing routes stated identically to the Act, the prescribed forms A, B, C and E, the attorney eligibility bars, and recognition of powers made outside the province.
• Government of Saskatchewan, The Powers of Attorney Act, 2002 — section 3 on types, section 4 on the grantor, section 11 on signing, and section 12 on the two witnessing routes with certificates.
• Government of Saskatchewan, Investigating Financial Abuse — the Public Guardian and Trustee demanding an accounting from a suspected attorney.