Can I use a Power of Attorney to sell my jointly owned property in Nova Scotia if my partner has Dementia?

/ Highlander Law Group/

If a property is owned in joint tenancy by more than one person, then all owners must consent to the sale in writing.

All Owners Must Consent in Writing to a Sale in Nova Scotia

If a property is owned in joint tenancy by more than one person, then all owners must consent to the sale in writing. (If you’re not sure if the property is owned in joint tenancy vs as tenants in common review our blog on the topic to help you understand the difference) However, if an owner is no longer competent, then someone must consent on their behalf.

Consent can be Given Using a Power of Attorney in Nova Scotia

If the person has given an unlimited Enduring Power of Attorney to someone prior to their incapacity, then that person, acting under the Power of Attorney can sign on the incompetent person’s behalf. (An Enduring Power of Attorney means it endures into their incapacity.) Be mindful that a Power of Attorney only gives the powers contained in the document so it is important to review the specific document that grants the Power of Attorney to confirm whether or not the Powers granted include the sale of real property.

Be appointed ‘Representative’ under Nova Scotia’s Adult Capacity and Decision Making Act

If no Power of Attorney was given prior to the person’s incompetence, then the only option is to apply to the Nova Scotia Supreme Court under the Adult Capacity and Decision Making Act. This is a relatively new piece of legislation and replaces the Incompetent Persons Act. Information on how the new act works is outlined on the Nova Scotia Public Trustee’s website. In general, you’ll need to have a capacity assessment performed on the person who you believe is incompetent, then using that assessment, apply to the court for an Representation Order which allows you to Act on their behalf as necessary. With that Order in place, you would then be able to sign their consent to the sale of the Property.

By: Dianna Rievaj - Founding Lawyer

Have Questions For Us?:

If you have any questions about power of attorneys or joint tenancy of a property you can call us at (902) 826-3070 or email us at info@highlanderlaw.ca to set up a meeting with one of our lawyers at our Tantallon law firm. You can also schedule a no commitment Issue Review Consult for $250+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.

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