Selling a House with Power of Attorney in Nova Scotia

The LRO Will Not Accept the EPA Alone

This is where the "I have a valid Power of Attorney, so I can sell the house" assumption breaks down. In Nova Scotia, real estate closings are conducted exclusively through registered lawyers using the province's Property Online (POL) system. The Land Registration Office (LRO) imposes requirements that go well beyond having a valid Enduring Power of Attorney.

Before the Attorney can sign any real estate documents on the donor's behalf, the EPA must be recorded in the property's parcel register. And recording requires more than just the EPA itself — the LRO demands two sworn supporting documents:

Affidavit of Execution. One of the two original witnesses who observed the donor sign the EPA must swear before a commissioner of oaths or notary public that they personally watched the donor sign the document. This affidavit confirms the EPA was properly executed.

Affidavit of Status. A sworn statement confirming the donor's marital status and age at the time the EPA was executed. This protects against matrimonial property claims — Nova Scotia's Matrimonial Property Act gives spouses rights in the family home that cannot be bypassed by a POA.

Without both affidavits, the LRO will reject the recording. Without the recording, the EPA cannot be used for any property transaction. The property cannot be sold, mortgaged, or transferred.

The Recording Process

Recording the EPA with the LRO is done through Form 26 (Record Interest or Power of Attorney). The process involves:

1. Prepare the package. Assemble the original EPA (or a certified copy), the sworn Affidavit of Execution, and the sworn Affidavit of Status.
2. Engage a lawyer. Real estate closings in Nova Scotia must be conducted by a registered lawyer who is an authorized Property Online user. The lawyer handles the Form 26 filing and the subsequent property transaction.
3. Pay the recording fee. The LRO charges $100 per instrument for recording. If you are recording the EPA and a subsequent deed of sale, that is two separate recording fees.
4. Verify registration. Once recorded, the EPA appears on the property's parcel register, and the Attorney can execute real estate documents on the donor's behalf.

When to Prepare the Affidavits

The critical mistake families make is not preparing the Affidavit of Execution at the time the EPA is signed. The affidavit requires one of the original witnesses to swear that they observed the signing. If the EPA was signed five years ago, the witness may have moved, become ill, or died. Tracking down a witness years later — and persuading them to go to a commissioner of oaths to swear an affidavit about a signing they barely remember — is difficult and sometimes impossible.

The practical solution: prepare and swear the Affidavit of Execution at the same time the EPA is signed, while the witnesses are present and the details are fresh. Even if there are no immediate plans to sell property, having the affidavit ready eliminates a future bottleneck.

What the Attorney Can and Cannot Do with Property

An EPA that grants general financial authority typically allows the Attorney to:

• Sell real estate (after LRO recording)
• Pay property taxes and insurance
• Manage rental properties (collect rent, pay maintenance)
• Refinance a mortgage (though lenders impose their own requirements)
• Transfer property to a beneficiary (subject to gifting restrictions)

However, the donor can restrict the Attorney's authority. An EPA that specifically excludes real estate transactions, or that requires the Attorney to obtain approval from a named Monitor before selling, limits what the Attorney can do. The LRO and the buyer's lawyer will review the EPA for any restrictions before completing the transaction.

Important restriction: Under the 2022 amendments to the Powers of Attorney Act, the Attorney is prohibited from making gifts from the donor's estate unless the EPA explicitly authorizes it. Transferring property to a family member at below market value would be considered a gift and could be challenged.

The Matrimonial Property Angle

If the donor is married and the property is the matrimonial home, the spouse's consent may be required for the sale under the Matrimonial Property Act. The EPA does not override matrimonial property rights. The buyer's lawyer and the LRO will check for this, and a sale without spousal consent — or without a court order dispensing with consent — will be blocked.

This is another reason the Affidavit of Status matters: it establishes the donor's marital status on the record, alerting everyone in the transaction chain to whether spousal consent is an issue.

Common Reasons for Rejection

The LRO or the buyer's lawyer may reject the transaction if:

• The EPA was not recorded on the property's parcel register before the Attorney attempted to sign
• The Affidavit of Execution is missing or was not properly sworn
• The EPA lacks the enduring clause (meaning it may be invalid if the donor is incapacitated)
• The EPA restricts real estate transactions or requires Monitor approval that was not obtained
• The donor's spouse has not consented and the property is a matrimonial home
• The EPA predates the 2022 amendments and the buyer's lawyer is concerned about compliance

The Nova Scotia Power of Attorney Kit includes the Affidavit of Execution and Affidavit of Status templates formatted for LRO acceptance, along with the Form 26 recording guidance, so families can prepare the complete real estate package at the time of EPA signing rather than scrambling when a sale is urgent.

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