Power of Attorney
Table of Contents
What is a Power of Attorney?
In British Columbia, a power of attorney is the primary tool for personal planning regarding finances, property, and legal affairs.
A power of attorney is used to appoint another person or persons (the “attorney(s)”) to make decisions regarding your finances, property, and legal affairs on your behalf if you cannot do so.
A power of attorney cannot be used to delegate your healthcare and personal care matters to someone else. That is done using a representation agreement.
What is an Enduring Power of Attorney?
At common law, a power of attorney automatically terminates when you lose mental capacity or die. This is not ideal if you are trying to plan for incapacity.
To remedy this, the British Columbia Power of Attorney Act allows for the creation of an enduring power of attorney – a special type of power of attorney that continues to be in effect even if you lose mental capacity. This makes an enduring power of attorney a useful incapacity planning tool.
What is a Springing Power of Attorney?
Normally, an enduring power of attorney is effective on the date that it is signed by both the maker of the document and the attorney or on a date specified in the enduring power of attorney.
This means that the enduring power of attorney will be effective even before you lose mental capacity. Some individuals may not comfortable with this.
To get around this, the enduring power of attorney can be “springing” – that is, it can be triggered to become effective only if a certain event occurs.
For an enduring power of attorney to be “springing” the document must provide how and by whom the event is to be confirmed.
This could be accomplished by including a provision in the enduring power of attorney requiring a statutory declaration from a physician that the person is incapable of managing their affairs due to physical or mental incapacity. This would ensure that the enduring power of attorney only becomes after that requirement or some other requirement has been met.
While springing powers of attorney can be useful in some circumstances, it is important to remember that it is not uncommon for someone to become incapable over time and so it may be appropriate for the attorney to act before they lose complete mental capacity. Additionally, it can be time-consuming and costly to obtain the requisite proof of incapacity from a medical professional.
At the end of the day, you can always revoke the power of attorney if you feel that the attorney is misusing it, as long as you have the mental capacity to do so.
Who can make an Enduring Power of Attorney in BC?
Any adult over the age of 19 in British Columbia may make a power of attorney (general or enduring or springing) as long as they have the mental capacity to do so. Mental capacity means that you are capable of understanding the nature and consequences of making the power of attorney.
You cannot make an enduring power of attorney in British Columbia unless you understand all of the following:
- the property you have and its approximate value;
- the obligations you owe to your dependents;
- that the attorney you name can do anything on your behalf concerning your financial affairs that you could do if capable, except make a will, subject to the conditions and restrictions you have set out in the enduring power of attorney;
- that, unless the attorney manages your business and property prudently, their value may decline;
- that the attorney might misuse the attorney’s authority; and
- that you may, if capable, revoke the enduring power of attorney.
How to make an Enduring Power of Attorney in BC?
An enduring power of attorney must contain a term that specifically allows the power of attorney to continue to be effective if you later become incapable of managing your affairs.
The enduring power of attorney must also be:
- in writing;
- signed and dated by you in the presence of two witnesses, and
- signed and dated by both witnesses in your presence.
Who can Witness a Power of Attorney in BC?
As noted above, you need to sign and date the enduring power of attorney in the presence of two witnesses. The two witnesses need to sign and date the enduring power of attorney in your presence.
However, only one witness is required, if the witness is a lawyer in good standing with the Law Society of British Columbia or a member in good standing of the Society of Notaries Public of British Columbia.
If an enduring power of attorney is to be registered with the Land Title and Survey Authority, then it is best to have it witnessed by a British Columbia lawyer or notary to avoid difficulties with registration.
The following people cannot act as a witness to the signing of an enduring power of attorney:
- a person named in the enduring power of attorney as an attorney;
- a spouse, child, or parent of a person named in the enduring power of attorney as an attorney;
- a person who is not an adult (19 years or older);
- a person who does not speak the same language as the maker of the power of attorney, unless they received interpretive assistance; or
- an employee or agent of a person named in the enduring power of attorney as an attorney, unless the attorney is:
- a lawyer,
- a member in good standing of the Society of Notaries Public of British Columbia,
- the Public Guardian and Trustee, or
- a financial institution authorized to carry on trust business under the Financial Institutions Act;
How to Revoke a Power of Attorney in BC?
Generally, you can revoke or change the enduring power of attorney at any time, unless you are incapable of understanding the nature and consequences of doing so.
To revoke an enduring power of attorney, you must provide a notice of revocation in writing to each of the attorneys named in the enduring power of attorney. The revocation is only effective once written notice has been given.
If the power of attorney has previously been filed with the Land Title and Survey Authority, a notice of the revocation must be filed in the land title office
Benefits of Making an Enduring Power of Attorney
Some of the benefits of making an enduring power of attorney include:
- it allows you to make arrangements in the event of incapacity;
- you can choose for the enduring power of attorney to become effective only after a specific event;
- it is less costly and time-consuming than an application for the appointment of a committee of an estate; and
- it can prevent the need for the involvement of the Public Guardian and Trustee to manage your financial affairs.