If the person acting under your power of attorney dies, their authority to act ends. What happens next depends on who else is named in your document and how they were appointed. An alternate you named yourself may be able to step in. Someone appointed as a substitute by your attorney may not be able to continue acting after that attorney’s death.
Here, attorney means the person you chose to manage your financial affairs. They do not have to be a lawyer. The person who signed the power of attorney is called the donor.
Can my alternate attorney take over?
Often, yes, if you named the alternate in your power of attorney. Manitoba law allows you to name attorneys to act one after another. Your document may say when the second person can begin acting, so it needs to be read carefully.
If you named two or more attorneys to act together, the death of one does not necessarily stop the others from making decisions. The terms of your document still matter.
This is why it helps to think about a backup when preparing or updating your power of attorney. Your first choice may be ready and willing today, but circumstances can change.
What if my attorney appointed a substitute?
A substitute appointed by your attorney is different from an alternate named by you in the original document. The substitute’s authority may depend on the authority of the attorney who appointed them. If that attorney dies, the substitute may no longer be able to act.
This can be easy to miss, especially when the substitute has already been helping with bills, banking or a property sale. Before they sign another document, have a lawyer review the original power of attorney and the substitute appointment.
Can I name someone new if my attorney has died?
If you can still understand the nature and effect of a new power of attorney, you may be able to make a new one. That lets you choose who will manage your financial affairs going forward.
If you can no longer make a valid new power of attorney, your family cannot simply sign one for you. They will need to look at the document already in place and get advice about the available legal options.
Can the court appoint a replacement attorney?
Manitoba’s Powers of Attorney Act allows the court to consider appointing a replacement under an enduring power of attorney, subject to the document’s terms and the donor’s intentions. It is not an automatic fix whenever an attorney dies.
We saw how much this can matter in a case our office handled. A mother had named her husband as her attorney under a power of attorney. After she lost the capacity to make a new one, he appointed their daughter as a substitute. The daughter was helping sell her parents’ home, but her father died before the sale was completed. When she signed the transfer documents, Land Titles refused to accept her authority to act for her mother: that authority had come through her father and ended when he died.We saw how much this can matter in a case our office handled. A mother had named her husband as her attorney under a power of attorney. After she lost the capacity to make a new one, he appointed their daughter as a substitute. The daughter was helping sell her parents’ home, but her father died before the sale was completed. When she signed the transfer documents, Land Titles refused to accept her authority to act for her mother: that authority had come through her father and ended when he died.
Potasky v Potasky
The Property registry relied on Potasky v Potasky 2002 MBQB 146, a Manitoba decision from 2002.
This case stands for the proposition that the death of an Attorney ends the POA. We have a saying in law: bad facts make bad law. Potasky created a problem for our client.
In that case, the wife of the deceased attorney waited several years before applying to court to be named Attorney (to replace the one who had died) While the POA act allows a court to exercise its discretion to appoint a new attorney, the court was faced with the difficulty of appointing someone several years after the last attorney died.
Rightfully, the court was concerned that if it approved the wife as the attorney, it would establish a precedent where POA documents could remain valid indefinitely, even though no attorney was there to “steer the ship.” This would create uncertainty that goes against the principles of common law.
So the court determined that while it enjoyed discretion under the act to appoint attorneys, the death of an attorney didn’t permit the court to do so. The common law principle that the death of an attorney ends a POA prevailed.
Our Case
If the reasoning in Potasky applied, the death of the father ended the mother’s POA. But, we needed a valid POA to complete the transfer of the home. The purchasers had already moved in! We had a big problem!
We applied to court and argued that Potasky didn’t stand for the principle that the death of the attorney ended the POA. Rather, Potasky was a good example of the appropriate use of discretion. It was appropriate for the court in Potasky to refuse to exercise its discretion. Having a POA document “floating in limbo” for four years isn’t reasonable.
This interpretation fits better with the other legal principle at play. Statutes (laws passed by the federal and provincial governments) displace principles of common law. The POA act clearly states that the court enjoys wide discretion. The common law principle relied upon cannot erase that.
In the end, the court granted our application (meaning they must have accepted our position). However, it didn’t give reasons. This was a matter of expediency. The property transfer was stuck in limbo. There was a sense of urgency. The court used it’s discretion.
Hopefully, in time, the court will provide further clarification and practitioners will have a readily available decision to rely on. Meanwhile, we’ll have to rely on these more obscure, unpublished decisions and hope for the best when a judge raises concerns.
What should the family do first?
If an attorney has died and financial decisions still need to be made:
- Find the complete power of attorney, including any later appointments or changes.
- Check who named the next person: the donor or the attorney who died.
- Pause any transaction that depends on uncertain authority, such as signing property transfer documents.
- Speak with a lawyer promptly if bills, care costs or a sale cannot wait.
A little planning can spare your family a difficult question at an already difficult time. Our article on choosing someone to act under your power of attorney can help you think through your first choice and your backup.
If your family is facing this situation in Winnipeg or elsewhere in Manitoba, contact TLR Law or call 204-925-1900. We can review the documents and help you work out who has authority to act.
