Substitute Decision Maker PEI

Three Roles, Three Documents

Prince Edward Island divides substitute decision-making across three legally distinct roles, each governed by its own instrument and statute. Getting this architecture right is the foundation of effective planning — appointing the wrong person, or leaving one role empty, creates gaps that only a court can fill.

Attorney — handles financial and property decisions under a Power of Attorney (Forms 1 or 2), governed by the Powers of Attorney and Personal Directives Act (in force November 1, 2025). Scope: bank accounts, investments, real estate, tax filings, bill payments, legal claims.

Agent — handles non-healthcare personal decisions under a Personal Directive (Form 3), also governed by the Powers of Attorney and Personal Directives Act. Scope: accommodation, social associations, education, employment, daily care standards.

Proxy — handles healthcare and medical treatment decisions under a Health Care Directive, governed by the separate Consent to Treatment and Health Care Directives Act. Scope: consent to or refusal of medical procedures, diagnostic tests, palliative care, end-of-life wishes.

Each role stays in its lane. An Attorney cannot consent to surgery. A Proxy cannot sell the house. An Agent cannot access bank accounts. If a family needs to make decisions across all three domains — which is the common scenario when a parent develops dementia — they need all three documents.

Who Can Serve

The named Attorney must be at least 18. An Agent under a Personal Directive and a healthcare Proxy can be 16 or older. All three must have mental capacity themselves.

The critical screening requirement for Attorneys and Agents is the ten-year criminal lookback under Sections 11 and 25 of the Powers of Attorney and Personal Directives Act. Anyone convicted within the past ten years of assault, sexual assault, theft, fraud, criminal breach of trust, intimidation, criminal harassment, or uttering threats is legally disqualified.

The only path around this disqualification: while the principal still has capacity, the proposed decision-maker must formally disclose the conviction in writing, the principal must acknowledge it in writing, provide written consent, and obtain independent legal advice. If the principal has already lost capacity, the waiver process is unavailable and the disqualification is absolute.

How Each Instrument Activates

Financial POA — two options. An immediate POA (Form 2, Option A) takes effect upon delivery and continues through subsequent incapacity. A springing POA (Form 2, Option B) activates only when a qualified practitioner formally determines the principal lacks capacity.

Personal Directive — always springing. The Agent has no authority until incapacity is formally determined. There is no immediate activation option.

Health Care Directive — always springing. The Proxy steps in only when a healthcare provider determines the patient cannot consent to their own treatment. Until that point, the patient makes their own medical decisions.

The Healthcare Default Hierarchy

Healthcare is the one domain where PEI provides a built-in fallback if no planning document exists. Under the Consent to Treatment and Health Care Directives Act, when a patient cannot consent and has no Proxy, practitioners can seek substitute consent from a statutory list: a court-appointed guardian with treatment-consent authority (if one exists), then the spouse (not separated), then an adult child or parent, then a sibling, grandparent, grandchild, niece or nephew, a close friend with personal knowledge of the patient's values, and finally the Public Guardian and Trustee.

There is no equivalent default for financial or personal matters. Without a POA and personal directive, those domains require a court application.

Same Person or Different People?

Some families appoint the same person to all three roles. This simplifies coordination — one person makes all decisions, no handoffs, no conflicting instructions. It works well when one adult child is clearly the right choice and lives close enough to manage day-to-day involvement.

Other families split the roles. A child with financial expertise handles the Attorney role. A sibling who lives in the same community as the parent takes the Agent and Proxy roles, since personal care and healthcare decisions benefit from proximity and frequent contact.

Section 37 of the Act allows combining a Power of Attorney and Personal Directive into a single document, streamlining the execution ceremony. But the Health Care Directive must remain separate — it is governed by a different statute with its own execution requirements, including mandatory signature acceptance by the Proxy.

When No Substitute Exists

If an adult loses capacity with no planning documents and no family members available or suitable to apply for a court order, the Public Guardian and Trustee becomes the decision-maker of last resort. This is the most expensive and least private outcome — annual management fees, mandatory court reporting, and a public registry of the adult's cognitive assessment and financial details.

The entire system is designed to incentivize proactive planning. One afternoon of signing produces three documents that keep decision-making private, fast, and within the family.

The Prince Edward Island Power of Attorney Kit covers all three instruments in PEI's tripartite system, with step-by-step guidance for drafting, executing, and activating each document under the active 2025/2026 laws.

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