Estate Documents: When is it Too Late?

I want to share a very sad situation I was recently involved in so that hopefully it won't happen to any other family.

I was approached by a gentleman seeking estate documents [Wills, Powers of Attorney ("POA") and Personal Directives ("PD")] for himself and his wife, who was hospitalized with a terminal condition. I took instructions, completed the documents and attended at the hospital so they could be signed.  However, when I spoke to the wife, I immediately realized we had a problem - she did not appear to have the legal capacity required to validly sign the documents.

Although the instructions the husband had given sounded perfectly reasonable and I had no reason to think that this wasn't what she wanted, I could not proceed with having the wife sign the documents.

What's required for a person to have the "legal capacity" will vary depending on the act to be performed. However, in general terms, in order to execute legally valid documents, you must have a certain level of competency. You must have the ability to understand the information relevant to making the decision and the ability to appreciate the reasonably foreseeable consequences of the decision or lack of decision.

Unfortunately, mental competence can become an issue if a person’s ability to think clearly is affected by illness, drugs, or pain. This is why it's critical that Wills and other estate documents be completed while you are in good health so that there are no questions as to your mental competence.

I felt bad for both parties but it emphasized how important it is to prepare such documents before it is too late.

Note to yourself: there's a good chance it will be "too late" to proceed with such documentation when you already have a terminal diagnosis.

This is especially so when you consider leaving assets in a Will to a beneficiary whom is challenged.

For more information on the standards required to execute valid estate documents, please follow the link.

For a Will to be valid, the maker must

• know that he or she is making a Will and understand what a Will is;
• know what property he or she is owns; and
• be aware of the people (like a spouse or children) that he or she would normally feel obligated to provide for.

For a valid POA, the maker must understand that

• the person appointed will be immediately able to assume complete authority over his or her affairs;
• the person appointed can do anything with the person's property that he or she could; and
• the authority will continue if he or she becomes mentally incapable. 

Although not currently the standard in Nova Scotia, the Law Reform Commission of Nova Scotia suggested that a more detailed set of requirements be used; namely that the person understand

1. the type of property he or she has and its approximate value;
2. the obligations (if any) he or she owes to dependents;
3. that the person appointed will be able to do anything in respect of their financial affairs that he or she could do if capable, except make a Will, subject to any conditions and restrictions set out in the POA;
4. that, unless the person appointed manages the business and property prudently, the value may decline; 
5. the possibility that the person appointed could misuse the authority given; and
6. that he or she may, if capable, revoke the POA.

A Personal Directive allows a person to set out instructions or an expression of the person's values, beliefs and wishes about future personal-care decisions* to be made on his or her behalf and authorize one or more persons to act as delegate to make such decisions on his or her behalf.

The Personal Directives Act provides that in order to execute a valid Personal Directive, the person must "have the ability understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision".


"Personal care" is defined to include, but is not limited to, "health care, nutrition, hydration, shelter, residence, clothing, hygiene, safety, comfort, recreation, social activities, support services".