Are there Residency Requirements to be a Power of Attorney or Executor?

Do geographical boundaries matter when appointing someone as a power of attorney or executor?  While there is no absolute prohibition on appointing non-residents, it may be wise to choose someone close to home.

Power of Attorney

An attorney appointed under a Power of Attorney does not need to be a resident of Manitoba, or even a resident of Canada.

Section 16 of The Power of Attorney Act states that an attorney with an enduring Power of Attorney may be an individual who is an adult, mentally competent, and not an undischarged bankrupt.

However, it may be advisable to appoint an attorney who lives reasonably close to you. Appointing an attorney who regularly resides in Manitoba may make managing your affairs easier for your attorney, if and when they are required to do so. It will likely be more convenient for an attorney to have easier access to the donor’s assets and those with whom the donor may deal with.

Committee under The Mental Health Act

If someone becomes mentally incapable of managing their affairs and has not signed a Power of Attorney while still mentally capable, a person may be appointed as their “committee” to manage their affairs. In such circumstances, a close relative or friend may apply to the Court of Queen’s Bench to become a committee. The Mental Health Act stipulates that a person can only be appointed as a committee if they are a resident of Manitoba.

Executors and Administrators

Executors appointed by a will are given authority to manage an estate when they are granted probate from the Manitoba Court of Queen’s Bench. A “Grant of Probate” validates the will, and gives an executor authority to deal with the estate’s assets.

There is no requirement in Manitoba for executors to be residents of Manitoba, or even Canada, to be granted probate.

But, that does not mean appointing a non-resident is a good idea.  Section 7(2) of The Court of Queen’s Bench Surrogate Practice Act states that if an executor is “not habitually resident within Canada,” they may be required to post a security bond to the Court before the Court will grant probate. Rule 74.11 of the Court of Queen’s Bench Rules provides details as to the security required. A security bond can be expensive and cumbersome to deal with.

Furthermore, appointing a non-resident can also have implications under the Income Tax Act, as it could cause trusts in the estate to be deemed non-resident, which can have significant tax implications.

For those reasons, in most cases we recommend appointing residents if at all possible.

It should also be noted that The Trustee Act grants the Court of Queen’s Bench broad discretion to remove executors for reasons which could include if they “remain out of the province for more than 12 months.”

As in the case of appointing an attorney, appointing an executor who lives reasonably close to your place of residence may prove to be more convenient when they need to apply for probate and distribute your estate.

Administrator

When there is no executor available to distribute a deceased’s estate, an “administrator” can be appointed by the Court of Queen’s Bench to administer the estate.  An administrator is appointed to distribute the property of the estate when a person dies

• without a will;
• without naming an executor; or
• if the named executor(s) have died, are not able to act, or will not act.

Section 7(1) of The Court of Queen’s Bench Surrogate Practice Act states that administration “shall not be granted to a person who is not habitually resident within Manitoba.” This means that only those who regularly reside in Manitoba may apply to become an administrator of an estate.

For more information or questions about power of attorney or estate planning, please contact one of our lawyer