Powers of Attorney in British Columbia
A Power of Attorney is a legal document that allows a capable adult to appoint one or more adults to care for their financial and legal matters in the event they need assistance or become legally incapacitated. Financial affairs could include such things as everyday banking, paying for or changing phone, cable or other services, renewing, changing or cancelling home or auto insurance, refinancing, selling or purchasing a home. A Power of Attorney does NOT give an Attorney the ability to make personal or health care decisions. For that ability you need a Representation Agreement.
Who Should get a Power of Attorney?
Anyone who owns a property, has minor children, travels, has any major health concerns or may be coming to a point in life where help to care for your finances would bring great relief should take the time to learn more about a Power of Attorney, and how it may be of assistance to them now or in the future.
Who can you appoint as your Attorney?
You should appoint someone you trust because you are giving them a lot of power. Usually a spouse, family member, or friend. Or it could be a professional such as your lawyer or accountant, or a trust company. You cannot appoint anyone who is paid to give you personal or health care services or who works at a facility where you receive personal or health care services, unless that person is your child, parent, or spouse.
You can also appoint more than one person to act as your Attorney. The law requires that the Power of Attorney document stipulate whether the Attorneys are required to act together or separately. If there is no reference in the document, then the law will presume that the Attorneys will be required to act together. During our interview process we discuss the implications of each scenario and help you to determine the situation that will work best for you and your Attorneys.
What are the different types of Powers of Attorney?
1. Specific or general power
You can give your attorney very limited power, for example, give your daughter a power of attorney only to cash your pension cheques for you. Or you can give someone very broad power to deal with all your financial and legal affairs. Such a power of attorney ends if the adult becomes mentally incapable.
2. Power of attorney for real estate
A power of attorney for real estate has to be filed with the Land Title Office. Under Part 6 of the Land Title Act, it is valid for only three years from the date of signing, unless it says otherwise, or unless it is an enduring power of attorney.
3. Enduring Power of Attorney
An enduring power of attorney continues (or endures) if the adult becomes mentally incapable. In contrast, as explained above, a power of attorney ends if the adult becomes mentally incapable. An enduring power of attorney must say whether the attorney may exercise authority while the adult is capable and later if the adult becomes incapable, or only while the adult is incapable. It must also say that the authority continues despite the adult’s incapability.
Why make an enduring power of attorney?
With an enduring power of attorney, you decide who will look after your legal and financial affairs if you become incapable. Without an enduring power of attorney, if you become incapable, someone (such as your spouse or other family member) may have to apply to BC Supreme Court to be appointed your committee of estate to look after your legal and financial affairs. You have more control if you make an enduring power of attorney. And it costs much less than going to court to appoint a committee.
What are the duties of an attorney under a power of attorney?
- act honestly and in good faith
- exercise the care, diligence, and skill of a reasonably prudent person
- act within the authority given in the enduring power of attorney
- keep proper records for inspection and copying
- act in the adult’s best interests, taking into account the adult’s current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney
- give priority when managing the adult’s financial affairs to meeting the personal care and health care needs of the adult
- invest the adult’s property only under the Trustee Act, unless otherwise stated
- foster the independence of the adult and encourage the adult’s involvement in any decision-making that affects the adult
- not dispose of any property that the attorney knows is specifically gifted in your Will, unless it’s necessary to comply with their duties
- keep the adult’s assets separate from the attorney’s assets
What does it cost to get a Power of Attorney drawn up?
There are certain matters where we are able to charge a flat fee, such as drafting a Power of Attorney. We offer discounts for estate planning packages. Please see our Value Based Flat Fees page for further information.
Who shall I talk to?
Please contact our offices to make an appointment.