Power of Attorney
What is a Power of Attorney?
A power of attorney or mandate (Quebec) is a contract through which someone designates another person to act in his or her name and interest in completing a legal act with a third party. The person who gives the mandate is called the grantor or mandatory (Quebec) and the person who receives the power of attorney is called the attorney or mandatary (Quebec).
You can give either a written or verbal power of attorney; however, having a written power of attorney makes it easier to provide evidence of the power of attorney should a conflict later arise. National Bank only recognises written powers of attorney because they demonstrate that the person seeking to act on your behalf is not an imposter, but is, in fact, your attorney. Because of this, National Bank will not accept verbal powers of attorney of any kind.
The power of attorney can take the form of a private letter or a more complex document. National Bank provides its own model form for its customers to use in creating a written power of attorney, but you are not obligated to use it. You can use your own format of written power of attorney, created with the help of a legal professional, as long as it respects the legal criteria of the province or territory where you reside. The written power of attorney should at least include the following information:
- The date it was written;
- The grantor’s name;
- The attorney(s’)’s name(s);
- A description of the responsibility conferred upon the attorney(s);
- The grantor’s signature.
Power of Attorney Form
National Bank’s model form may not necessarily be the best option for your particular situation or meet all of your current needs, or it may create a conflict with an existing power of attorney you have. Because of this, if you choose to use the form we provide, we encourage you to seek independent legal advice.
In the province of Quebec, you do not need witnesses to the mandate, nor are you obligated to deposit the mandate with a notary. Some other provinces and territories require that the power of attorney be witnessed and signed to that effect.
You can modify or terminate a power of attorney at your discretion and at any time, so long as you are fit to make such decisions.
When a power of attorney is added to your account, we will verify both your identity and the identity of the attorney with the goal, among others, of preventing identity theft and of complying with the applicable legislation, including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. To these ends, we require two pieces of identification, one of which must absolutely be a form of identification in a category recognized by National Bank. For a complete list of accepted forms of identification, please see the brochure “Access to Basic Banking Services”:
We also require either the original written power of attorney or a certified copy thereof.
Once you have presented a power of attorney to National Bank, we will make the necessary verifications. For example, if the power of attorney that is submitted to us raises questions about the range of powers accorded to your attorney, we may review the power of attorney in more depth. In this case, we would inform you of the delay required for us to complete this analysis (which could take several business days).
Which types of Powers of Attorney are used in Canada?
The types and requirements of Powers of Attorney that deal with property vary depending on the province or territory where you live.
A General Power of Attorney (or Regular Power of Attorney) is a legal document that gives your attorney authority to manage all or some of your finances and property on your behalf, but only while you are capable of managing your own affairs. It ends if you become incapable of managing your own affairs.
A Power of Attorney can be specific or limited, which means that it gives your attorney the authority to either accomplish a specific task (e.g., sell a house) or act on your behalf for a specific period of time. The Power of Attorney can start as soon as you sign it, or it can start on a specific date that you write in the document.
In provinces other than Quebec, an Enduring or Continuing Power of Attorney is the most common type used. It usually takes effect as soon as you sign it while you are still capable, and it allows you to monitor the actions of your attorney. In the event that you became incapable, your attorney is therefore able to continue acting on your behalf.
It is also possible to request that the Power of Attorney only takes effect upon any specific event, such as if you became incapable. This type of Power of Attorney is called a Springing or Contingent Power of Attorney. This legal document allows your Attorney to act on your behalf, but only if you were to become incapable to manage your own finances and property or when the event specified in the Power of Attorney occurs.
The following table summarizes the different types of Powers of Attorney:
|General or Regular Power of Attorney||
Mandate in case of incapacity (Quebec)
Power of attorney for personal care or a Representation Agreement
|Enduring or Continuing Power of Attorney (In provinces other than Quebec)||
|Limited Power of Attorney||
|Springing or Contingent Power of Attorney||
Choosing an attorney
Unless you limit your attorney’s authority, this person can manage your finances and property in the same manner you would for yourself. Your attorney does not become the owner of any of your money or property, but has the authority to manage it on your behalf, in accordance with the terms of the Power of Attorney and the applicable law. That is why it is important to:
- Name someone you can really trust (your spouse, a close friend or a family member)
- Consult a legal advisor to help you properly draft the Power of Attorney and the extent of the authority that you wish to grant to your attorney
Also, the law requires, among other things, that a Power of Attorney may only be considered valid if you are capable* at the time it is signed.
What are the legal responsibilities of my attorney?
Your attorney’s legal responsibilities vary depending on the province or territory where you live. But this person must, at all times, act in your best interest and manage your affairs in accordance with the instructions laid out in the Power of Attorney.
If we receive instructions from your attorney that don’t appear to be in your best interests or that seem unusual, we will inform you of these instructions. In this case, we may also complete a more in-depth review of the instructions and, if needed, will inform you of the delay required for this analysis (which may be several business days). When a review concerns an eventual financial exploitation or another illicit activity by the attorney, we are not obligated to inform the attorney of the review and we may even be forbidden from doing so.
What are the risks and advantages of a Power of Attorney?
- You choose the person who will have the authority to manage your property.
- The attorney must act in your best interest, and may be required by law to account for and explain how he or she is managing your money and property.
- You may choose to appoint more than one attorney in order to reduce potential fraudulent use of the Power of Attorney.
- You may appoint someone to manage your money while you are away temporarily or if you need help managing your affairs.
- Enduring or Continuing Power of Attorney (or a Mandate in Case of Incapacity, in Quebec) allows your attorney to look after your affairs if you become mentally incapable.
You fall victim to financial abuse
- Your money and property could be mismanaged if the attorney you have chosen isn’t trustworthy, uses your money improperly, or does not make decisions that are in your best interest.
The Power of Attorney is not up to date
- If the Power of Attorney isn’t reviewed regularly, it might no longer meet your current needs or legal requirements.
- The person you had previously appointed may no longer be the best choice or may no longer be available.
Should you experience a problem with your power of attorney or your attorney’s instructions that you would like to address with National Bank, please proceed as follows:
In the great majority of cases your concern can be resolved quickly by directly contacting the personnel or person responsible for client service at your local National Bank branch, either by phone or letter. To get your branch’s coordinates, call National Bank at 1 888 TelNat-1 (1-888-483-5628) or access to the branch locator.
For National Bank’s complete complaint settlement process, please consult the brochure “Complaint Settlement—For better banking relations with you”.
* Generally, to be considered capable, you must be able to understand the meaning and consequences of legal and financial decisions.
1 A client who grants an individual Power of Attorney to act on his/her behalf.
2 The person who is granted Power of Attorney in order to make certain decisions on the client’s behalf.