Affidavit of Execution of Power of Attorney

What is an Affidavit of Execution of Power of Attorney?

An Affidavit of Execution allows someone to swear they witnessed the signature of a legal document. They swear either under oath or affirmation:

• Oath: religious individuals make an oath. They swear on the Bible to tell the truth;
• Affirmation: non-religious individuals make an affirmation. They solemnly declare the truth.

These both have an identical legal effect, the breach of which is the criminal offence of perjury.

Specifically, the Affidavit of Execution of Power of Attorney is needed when someone executes (signs) a Power of Attorney, and that Power of Attorney is witnessed.

What are the different types of Affidavits?

This document is for an affidavit of execution for a power of attorney. Other affidavits may be used depending on the legal context. For example:

• General affidavit: this may be used to recount a set of facts;
• Affidavit of execution for a will or codicil: this may be used when a person signs their will or codicil.

Is it mandatory to have an Affidavit of Execution of Power of Attorney?

No. While having an affidavit is usually not legally required, it is a document that helps prove that the power of attorney was property executed. This means that it proves that the person who signed the affidavit did so in compliance with the law and the appropriate witnesses observed the signature.

What must an Affidavit of Execution of Power of Attorney contain?

An affidavit of execution of power of attorney must contain several statements:

• The witness was present on the day of signature;
• The witness signed the document on the day of signature; and
• The person signing the power of attorney was capable of doing so.

What are the prerequisites of an Affidavit of Execution of Power of Attorney?

Before signing an affidavit of execution of power of attorney, the actual power of attorney itself must have been signed by the grantor (the maker) of the power of the attorney. An affidavit of execution of power of attorney has no relevance if the actual power of attorney document hasn't been signed.

Who can enter into an Affidavit of Execution of Power of Attorney?

An affidavit of execution of power of attorney must be signed by one of the witnesses to the actual power of attorney. In short, the process is the following:

• Someone signs a Power of Attorney;
• The witness or witnesses also sign the Power of Attorney;
• The witness signs the Affidavit;
• A Commissioner or Notary signs the Affidavit;
• The Affidavit gets attached to the Power of Attorney.

What has to be done after an Affidavit of Execution of Power of Attorney is ready?

After witnessing a person sign their Power of Attorney, the Affidavit of Execution is then signed by the person who witnessed the signature on the Power of Attorney. Witnessing means the witness was physically present and saw the person sign the legal document in front of them.

Once the witness signs the Affidavit, a commissioner for oaths and affidavits must also sign (commission) the document to verify the authenticity of the statement. Notaries are also authorized to commission these documents.

The Affidavit must be signed in front of a Commissioner or Notary. If the Commissioner or Notary isn't present, print out the document and wait to sign it in the presence of the Commissioner or Notary. Some Provinces and Territories permit remote signing.

Which documents should be attached to an Affidavit of Execution of Power of Attorney?

The affidavit of execution of power of attorney should be attached to the power of attorney itself. The affidavit of execution proves that the power of attorney was properly signed, therefore it's important to attach the two documents together.

Is it necessary to have witnesses for an Affidavit of Execution of Power of Attorney?

Yes. Having a witness, specifically a commissioner, is necessary for an affidavit of execution.

Witnessing means seeing the person sign their Power of Attorney, and the witness then signs the Power of Attorney themselves. If the witness signed the Power of Attorney, they would sign this Affidavit. Once the Affidavit is signed, a Commissioner or Notary signs the Affidavit. These are people authorized by law to witness Affidavits, which is a requirement. A simple Internet search can be used to locate a local commissioner or notary.

What are the costs involved in the finalization of an Affidavit of Execution of Power of Attorney?

The affidavit of execution needs to be commissioned by a commissioner, which will be an added fee. The amount of the fee depends on the individual commissioner's rate (around $50-$300).

Which laws are applicable to an Affidavit of Execution of Power of Attorney?

Affidavits are used depending on the legal context. For example, when dealing with a lawsuit, the law requires the filing of Affidavits with the court. When dealing with a deceased's estate, the law requires the filing of an Affidavit of Execution to probate (prove) the Will of the deceased. An Affidavit is also used when changing a marital name or transferring title to property. The affiant in an Affidavit must be honest when recounting the facts. Lying under oath or affirmation is a federal crime under the Criminal Code (R.S.C., 1985, c. C-46).

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