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Monday, August 9, 2010

Does my Enduring Power of Attorney cover my out-of-province property?

Plenty of Canadians own vacation properties, second homes or cottages in other provinces, or outside of Canada. Of course they have to deal with transferring the title to these properties in their Wills, but they also have to make sure that the properties are covered by an Enduring Power of Attorney (aka Continuing Power of Attorney, or Durable Power of Attorney).

The person acting under the Power of Attorney may need to sell the property, pay the property taxes, do repairs, rent it out or otherwise deal with it while the owner is mentally incapacitated. Planning for incapacity should be done at the same time as planning your Will.

If a Power of Attorney is made in Canada, will it have any jurisdiction over a winter home in Arizona? If the Power of Attorney is made in Manitoba, will it cover the lake cottage in BC? Not only does the law of any given province differ from American law, the laws of each province and territory is different. It's very risky to assume that a document made in one place will be of any use in another place.

So how does an individual make sure that he or she is giving the correct legal authority to someone under an Enduring Power of Attorney? The safest bet is to prepare an Enduring Power of Attorney in your usual place of residence, then prepare a second one in the province or state where you own your vacation or lake property. The second one will deal ONLY with that vacation or lake property.

Make sure that both of the documents make reference to each other. If you don't, you may accidentally revoke one of them, as normally each new Enduring Power of Attorney revokes all previous ones.

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