|
FAQ's - Powers of Attorney (Specifically for use in BC)
What is new with Powers of Attorney?
Significant legislative changes were passed September 1, 2011
which expanded the Power
of Attorney Act from 9 paragraphs to 42 by adding
a Part 2 to deal specifically with "Enduring" Powers
of Attorney. The new provisions afford greater flexibility
in tailoring an Enduring Power of Attorney ("EPA")
to the needs of the Donor but it will likely make for a more
involved document and drafting process.
What is an "Enduring" Power of Attorney?
An enduring PA provides that the powers granted shall continue
to be in effect despite any possible subsequent mental infirmity
on the part of the Donor. Without the "enduring clause", an
ordinary PA ceases to be effective at the same time as the
Donor loses his/her capacity to transact on their own behalf.
What do the changes mean for my existing Power of Attorney?
A Power of Attorney ("PA") that was valid prior
to September 1, 2011 is grandfathered and still in effect
but, if enduring, may look very different from the new form.
Does a general Power of Attorney have to be in any particular
form for use in BC?
Financial Institutions may have their own forms of PA to be
used internally regarding their client's accounts but they
are not for general or widespread use. There is a prescribed
form of document under the Power of Attorney Act which
is still of use if non-enduring. As mentioned above, however,
an EPA will now be a more involved document. There is a precedent
from the Attorney General's office but some firms, ours included,
are holding off the preparation/execution of the new EPA for
our clients until all authorities, such as the Land Title
Office, have weighed in on the requirements for its expanded
form and content.
Generally speaking, what is a Power of Attorney?
A PA is a legal document evidencing the authority granted
by one person (the Donor) to another (the Attorney) to act
on his/her behalf in business or financial matters. Being
such a simple and inexpensive planning tool, it is often likened
to insurance - you hope never to need it but its value is
beyond measure if you ever do.
Can my attorney make binding decisions regarding my personal
or medical care?
No. The authority granted in a PA is more in the area
of business and financial matters. It does not include the
power to make personal, medical or life decisions on your
behalf. Representation Agreements, however, can contain such
provisions.
Who can make a Power of Attorney?
Any capable adult can make a PA. If a person has a mild intellectual
disability or is in the very early stages of dementia, they
may still be able to do so but this will depend on their understanding
of the document's nature and effect. If there is doubt concerning
capacity, however, an assessment by an appropriate person
such as a medical practitioner or psychologist would be required.
Why would I want to give Power of Attorney?
You may want to appoint an attorney in situations where
- you are going to be away/out of communication/in hospital
- you want someone to handle a particular matter for you
- you are physically unable to continue to look after your
own affairs
- you want to prepare for the possibility of unexpected
mental incapacity After all, the major causes of death -
accident, illness and age - do not always take their toll
immediately but can instead result in diminished capacity
over an extended period of time. Once you need a PA, it
may be too late to make one.
When I appoint an attorney, does that mean it has to be
a legal professional?
No. An attorney in this sense does not mean a lawyer or solicitor.
Usually you would appoint a family member or close friend.
The most important criteria for your selection is that the
person be trustworthy, responsible, willing and up to the
task. If you do not know any such person, you can appoint
a Trust Company or the Public Trustee but it would be prudent
to look into their fees for this service in advance. You may
wish to refer to the information pamphlet prepared by the
Public Trustee describing their role in this regard:
Can't my spouse just sign anything for me without a Power
of Attorney?
No. No one can legally sign on your behalf in the absence
of prearrangement or evidence of your authority to do so.
Of course it's OK if the two of you already share "either/or"
signing authority on a joint bank account, for example, but
for transactions involving assets in your name only or where
all co-owners must sign (such as with real estate) - only
your signature or that of your legally authorized (by way
of PA) signatory will do.
Are my own rights diminished by giving Power of Attorney?
No. They are not affected in any way by executing a PA but
now there is an additional person besides yourself who can
sign on your behalf.
When I make a Power of Attorney, how should my name appear
as Donor if, for example, I go by my middle name?
Ideally, you would use and keep up to date your full current
legal name for all major transactions and therefore maintain
consistency of identity. However, this may not always be the
case so one must try to anticipate the possible applications
of the PA. For use in a real estate transaction, for example,
your name must appear exactly as it does on the title to the
subject property and if you own multiple properties using
more than one version of your name, you may have to execute
more than one PA. This is generally true for other types of
business transactions as well though enforcement may be less
stringently applied.
Can I appoint more than one attorney?
Yes. There is no legal limit to the number of attorneys you
may appoint but in practical terms remember the old adage
about "Too many cooks…" Further, in light of your reason for
having opted for multiple attorneys, you will have to decide
whether they "may act separately" or "must act together".
Why might I consider appointing more than one attorney?
Particularly for an enduring PA to provide for possible future
mental infirmity, you may want to consider appointing more
than one attorney. Typically, for example, spouses will appoint
each other, but what if you're in the same auto accident?
What if one who has been caring for the other suddenly dies?
If you are fortunate enough to have more than one trustworthy
and capable adult to choose from who will not work against
each other, it may be of value in the long run.
What powers can I give my attorney?
The extent of the authority available to be granted is described
in the PA document as "anything that can lawfully be done
by an attorney". That generally encompasses most business
and financial matters taking place in BC. Be alert, however,
to a PA not being readily accepted for other reasons. Sometimes
the other party to a transaction may insist upon dealing directly
with the Donor. Some mortgage lenders, for example, may not
be comfortable with execution of their documentation by PA.
. One common example of something one cannot sign by PA is
a Last Will and Testament.
Can I restrict the powers granted to my attorney?
Yes. While a PA starts out general in nature, it can be made
specific by either limiting the powers to certain functions
or by excluding certain functions from the otherwise general
powers granted. Care in wording should be exercised so as
not to trigger an unanticipated evidentiary requirement of
the attorney (ie that they would have to prove something beyond
their own identity before acceptance of the PA).
What are the responsibilities of my attorney?
Your appointed attorney must act in your best interests at
all times and avoid any conflict with those interests. They
should keep your assets separate from theirs and maintain
proper records of their dealings with your assets. While they
can convert the form of your assets, they cannot, unless explicitly
provided for in the document, use the PA to convert ownership
of your assets to themselves. Misuse of a PA is a crime and
should be reported to the police and/or Public Trustee for
investigation. The new Part 2 of the Power of Attorney
Act now codifies very specific duties and responsibilities
for the attorney.
When does a Power of Attorney become effective and cease
to be effective?
A PA comes into effect upon its being fully executed and ceases
to be effective upon the Donor's death orbankruptcy, revocation
of the PA, and in the case of a non-enduring PA, the loss
of mental capacity of the Donor. It is therefore important
to manage the document in terms of its possession. You have
the option of giving the PA to your attorney at any time or
instead leaving it with a trusted individual for safe-keeping
until the time is right for the attorney to use it. Because
a PA cannot overlap into estate matters, the attorney must
upon the death of the Donor relinquish authority in favour
of the executor appointed in the Donor's (now Testator's)
Will.
How do I go about making a Power of Attorney?
Once you have decided upon the attorney(s) to be appointed
and the powers to be granted by your PA, there remain two
practical considerations in making a Power of Attorney:
- The first is the accurate preparation of the document
to ensure that your objectives are accomplished.
- The second is that it be properly witnessed. To be fully
effective, including use in land transactions, a PA made
pursuant to BC's Power of Attorney Act will require "Officer
Certification" meaning execution of the document in the
presence of a witness who is authorized under the Evidence
Act to take affidavits for use in BC, such as a Notary Public.
Does my Power of Attorney need to be registered?
Until recently, there was no registry specifically established
to record the existence of PA arrangements. The Nidus
Registry now fills that role but registration is optional.
A PA can also be registered at the Land Title Office and,
in fact, must be so registered if it is to be used in a real
property transaction.
What happens if I become mentally incompetent, thus unable
to act on my own behalf as a result of accident, illness or
age, and I haven't given an enduring Power of Attorney?
A number of options exist to assist those who are no longer
able to manage on their own and who have not made suitable
prior arrangements for such a possibility. Most of them involve
the Public Trustee and/or the courts. On this and related
topics, the Public Trustee has prepared an informative publication
describing various options.
Where can I get more detailed information about enduring
Powers of Attorney?
There is this helpful pamphlet
available through the People's Law School.
FAQ's - Planning Tools (Specifically for use in BC)
Where can I get more information about other planning
tools such as Representation Agreements?
There are a number of excellent resources available in this
regard such as the pamphlet entitled It's
Your Choice and others available through the Public
Trustee site making it a good place to start. Another
great resource is the Nidus
Registry site and their pamphlet, Stay
in Charge of your Life.
|
