Daily Living
Wills, Power of Attorney, and Estate Basics for PEI Seniors
A power of attorney terminates automatically the moment you become incapable, unless the document specifically says otherwise, PEI's 2023 Powers of Attorney and Personal Directives Act made that distinction explicit. Here's what most newcomer seniors still need to put in place.
1. Three Different Documents, Three Different Jobs
| Document | What it actually does |
|---|---|
| Will | Directs who receives your assets after death, and names your executor |
| Enduring power of attorney | Authorizes someone to manage your financial affairs, including through incapacity, if the document says so |
| Personal directive (health care directive) | Authorizes someone to make personal/health care decisions on your behalf if you can't |
Most newcomer seniors arrive in PEI with none of the three in place, home-country equivalents generally don't carry legal force in Canada, so this isn't a matter of transferring an existing document, it's starting from zero.
2. Making a Valid Will in PEI
- Must be in writing and signed by you (or by someone else at your direction, in your presence)
- Signed or acknowledged in the presence of two witnesses, present at the same time
- Both witnesses must be at least 18 years old and have the mental capacity to witness
- A witness who is a beneficiary, or the spouse of one, doesn't automatically invalidate the will, but that specific gift to them can be voided unless a court orders otherwise
3. Power of Attorney: The Detail Nearly Everyone Misses
Under PEI's Powers of Attorney and Personal Directives Act, a power of attorney is not enduring by default. If the document doesn't explicitly say your attorney's authority continues through your later incapacity, or is meant to take effect only once incapacity begins, it automatically terminates the moment you lose capacity, exactly when you'd need it most.
| POA type | Witness requirement |
|---|---|
| Ordinary (non-enduring) | No witness required |
| Enduring, or a personal directive | Exactly one witness, signing in your presence |
The witness cannot be your named attorney, that person's spouse or relative, or (with narrow exceptions for lawyers, the Public Trustee, or a trust-authorized financial institution) their employee.
4. Probate: What Your Executor Will Actually Face
If you own property or significant assets solely in your name, your executor will need to apply to the Estates Section of the Supreme Court in Charlottetown for Letters Probate. That application requires:
- Form 65A (Petition for Probate)
- Form 65D (Executor's Oath)
- Form 65E (Inventory of Estate)
- Form 65F (Proof of Will)
- The original will and a death certificate
Most lawyers complete a Proof of Will Declaration at the time the will is signed specifically to avoid the executor having to track down a witness years later, ask about this when you draft the will, it's a small step that saves real delay.
5. Where to Start
- Contact a PEI lawyer, or PEI's Community Legal Information Association, for an initial consultation, many offer flat fees for a basic will and POA package
- Decide who you trust with financial decisions versus health care decisions, they don't have to be the same person
- Explicitly state whether your power of attorney is enduring; don't assume it by default
- Store the original will somewhere your executor can actually access it, PEI's Supreme Court generally requires the original document for probate, not a copy