Deciding whether to be an attorney

What are my rights?

Once I say yes to being someone's attorney under a power of attorney, I can't change my mind.
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So, you’ve been asked to be someone else’s attorney under a power of attorney. Managing someone else’s affairs isn’t something to be taken lightly. Learn what to consider when deciding whether you want to take on this responsibility.

What you should know

A power of attorney is a legal document. With it, an adult can choose to give someone they trust the power to look after their financial and legal affairs.

Your family member or friend may feel that you’re the right person to take this on. You might be asked to do everyday tasks like paying bills or depositing cheques. They can also ask you to do more complex tasks like investing money or selling assets

In this scenario, you would be called the “attorney.” Here, the word “attorney” doesn’t mean “lawyer.” It simply means the chosen decision-maker. 

Under the law, the person preparing the power of attorney is called the “adult.” 

A power of attorney covers decisions and tasks related to your financial affairs. The law says that this includes dealing with legal matters. 

Financial affairs includes anything related to money or property such as: paying bills, filing taxes, buying food, managing investments, and selling assets.

Legal matters can include suing someone, defending a legal action, or hiring a lawyer.

A power of attorney doesn’t cover health care or personal care matters, such as whether an adult will undergo a medical procedure, where they live, or who their visitors are. For health care and personal care decisions, an adult can make a representation agreement. This allows them to name someone (a “representative”) to help make these kinds of decisions for them.

The scope of your authority will depend on what the power of attorney document says

It’s the adult’s choice how much power they want to give to you, as attorney. Your power can be limited to a single decision, or it can extend more broadly. There are different kinds of powers of attorney that are designed to be used for different purposes. If you know why you were asked to be an attorney, it may help you better understand what you’re being asked to do. 

If you’re unsure about the extent of your authority, the first place to look is the power of attorney document itself.

General power of attorney

“I was diagnosed with chronic fatigue syndrome in the fall. Sure, I could still calculate how much I owe the credit card company, if you asked me to. But I just don’t have the energy to juggle my everyday finances. I appointed my sister as attorney to help me get by while I focus on my health.”

– Akira, South Burnaby

Under a general power of attorney, you might be asked to manage an adult’s affairs while they are still mentally capable of managing their own affairs, but physically unable. This can be a good option when someone has mobility issues, or is ill or injured. 

Tip

Typically, an attorney under a general power of attorney is given broad powers to do almost anything with the adult’s finances and property. The document may say that the attorney can “do on my behalf anything that I can lawfully do by an attorney.” Read the document carefully for any conditions or restrictions to your power.

Limited power of attorney

“My house is on the market. My father got sick and I had to make a last-minute trip to Germany. I prepared a limited power of attorney so my niece Sara could sign the papers if my home sells while I’m gone. I also gave Sara authority to access my bank account so she can pay my bills. The authority ends when I come home from my trip." – Walter, Victoria

Your powers might be limited to a specific task or time period. This is called a limited power of attorney (also called a specific power of attorney). It’s often used by people who temporarily can’t manage their own affairs because they’re away travelling, or injured. 

Tip

The power of attorney document should clearly say what the limits of your powers are.

Enduring power of attorney

“Mom had early onset Alzheimer’s, and so did her brother. My doctor says there’s a chance I’ll get it too. I value my financial independence, so my partner Riley and I don’t have joint bank accounts. But I’ve appointed him as my attorney under an enduring power of attorney so that he can take the reins for me if the worst case scenario should happen."  – Gail, Penticton

With an enduring power of attorney, an adult can plan for a time in the future when they’re unable to make decisions for themselves. This may be due to illness or an accident or age-related decline. If you’ve been asked to be someone’s attorney under this type of document, your authority to act may start right away, and then continue — or “endure”  — after the adult becomes mentally incapable. 

Tip

Nidus Personal Planning Resource Centre and Registry provides a sample notice of resignation and more information on how to resign. 

Springing power of attorney

An enduring power of attorney can be set up so that it doesn’t become active until something triggers it. This is called a springing power of attorney. The triggering event might be that two physicians have declared the adult is mentally incapable. 

If you’re an attorney under a springing power of attorney, you can take over the adult’s affairs when the triggering event happens. 

As attorney, you have fiduciary duties

In the role of attorney, you are a “fiduciary.” This is a term used by the law. It refers to someone in a position of trust toward another person. A fiduciary has duties and responsibilities. Learn more about the key duties of an attorney.

As attorney, you have certain rights under the law:

  • You can access information: You can request to see information about the adult (like their pay slip). The information has to relate to your authority, or to the adult’s mental capacity

  • The adult’s property is to be given to you: If someone else has something that belongs to the adult, you can ask them to give it to you. They must deliver it to you promptly.

  • You can get help: You can seek help from a qualified professional, such as a lawyer, accountant, or investment adviser.

  • You may be paid: If the power of attorney document says you can be paid for acting as attorney (and sets out the rate), you can be paid for acting as attorney. Even if you can’t be paid, you can be paid back for any reasonable out-of-pocket expenses you incur on behalf of the adult.

An adult can still handle their own affairs after signing a power of attorney

As attorney, you can’t override any decisions the adult makes while they’re mentally capable. And decision-making isn’t given away: it’s shared between you and the adult whenever possible. Even if the adult becomes mentally incapable of making certain decisions, you must encourage their involvement, as much as possible.

There are different ways a power of attorney can end

The person who appointed you as their attorney can revoke — that is, take away — your authority to act as their attorney at any time. They must be able to understand the nature and consequences of doing so. 

If they decide to put an end to your authority, you must stop making decisions for them. You can read more about ending a power of attorney.

There are steps you should take if you think the change was the result of fraud or abuse. Learn more about how to keep the adult safe.

There are other ways a power of attorney can end

Under the law, your responsibilities as attorney will come to an end if:

  1. A court names someone as the adult’s “committee” because they’re “mentally incapable and require assistance.

  2. The Public Guardian and Trustee is named as “statutory property guardian.” If this happens, your authority as attorney will be suspended. The Public Guardian and Trustee will determine whether they should take over and end the power of attorney, or whether you should continue to act.

  3. The adult dies. An executor or administrator of the estate will take over.

  4. If you are the adult’s spouse and your marriage or marriage-like relationship ends. The exception is if the power of attorney document says otherwise.

  5. You are bankrupt.

  6. You become mentally incapable.

  7. You are convicted of a crime in which the adult is a victim.

  8. You die.

Tip

If your legal authority as attorney end, promptly notify any bank and other businesses you dealt with as attorney. Even if it’s easy to continue some tasks — such as paying the adult’s outstanding bills — don’t do it. 

You may have to work with others with authority to make decisions

There may be multiple attorneys

There may be others appointed to act as attorney alongside you. If there are multiple attorneys, the power of attorney document should say how you should work together — for example, whether each of you can act on your own, as a group, or in some combination. For example:

  • If the document doesn’t say anything, the attorneys must act unanimously. This means all of the attorneys have to agree before taking an action or making a decision on the adult’s behalf.

  • Where the document says attorneys can act independently of each other, you’ll still have to coordinate with any other attorneys and share information about decisions. Even where attorneys can act independently, you can’t let another attorney do something that harms the adult. You’re still responsible for the adult and must act in their best interest.

Tip

An adult can name an alternate attorney. This is someone who can act as attorney if their attorney isn’t able to act. 

As attorney, you should know that the alternate has no authority unless you’re not willing or able to act.

There may be other fiduciaries

“My husband Alex had a fishing accident a few years ago. I’ve been caring for him ever since, including managing his finances — I’m his attorney. When his brother Ivan passed away, we found out that he’d left Alex a lot of money. In his will, Ivan had made his daughter Adele trustee. She’s in charge of managing Alex’s inheritance. It’s been hard at times to work with Adele. We have different ideas about what’s best for Ivan and how his money should be spent.”

– Tammy, Vancouver

There may be others who also have the power to make decisions for the adult. It’s important to work with these other fiduciaries. They may include:  

  • A representative under a standard representation agreement: A person authorized to make decisions for another person when the person can no longer manage on their own. Their authority can cover health care decisions, as well as “routine” financial affairs and most legal matters.

Tip

What if a power of attorney document says one thing, and a representation agreement says something else? The law says this should be resolved in favour of what the power of attorney document says. 

  • A guardian or committee: A person appointed by a court to manage money and property for someone else. 

Tip

If the court appoints a committee, your authority as power of attorney will end. If the Public Guardian and Trustee is appointed as a “statutory property guardian”, your authority will be suspended and the Public Guardian and Trustee will decide whether you can continue to act.

  • A pension trustee: A person appointed by a government agency to manage government money that is paid to someone. Your power as attorney should override this arrangement. Notify the person or agency appointed as pension trustee.

  • A trustee: A person who holds property in trust for another person. 

Make the decision

Step 1. Consider your responsibilities and duties, as well as potential difficulties that may arise

As attorney, you’re in a position of trust toward the person who appointed you. Be prepared to make decisions for their benefit. You must ignore your own interests and needs, or those of others.

In making your decision, consider: 

  1. Whether acting as attorney is likely to put you in situations where your personal interests conflict with your duties as attorney.  

  2. Whether you’ll be paid. The law says you may be paid for acting as an attorney under an enduring power of attorney. The document must say so, and must set out the rate of pay.

  3. How difficult the task is likely to be, and whether you’re willing and able to take this on. Take into account:

  • The value and nature of the adult’s property.

  • How organized their affairs and papers are.

  • Views of family members and concerned friends, and the potential for disagreement with, or among, them.

  • The potential for disagreement with other attorneys.

  • What’s happening in your own life. Do you have the time, ability, and interest to manage someone else’s financial affairs?

Step 2. If you don’t want to act as attorney

If someone asks you to be their attorney, you don’t have to say yes. Explain why you think you’re not the best person for the job. If you don’t want to act as attorney, you can simply not sign the power of attorney document. 

Step 3. If you agree to act as attorney

If you agree to act as attorney, you’ll need to sign the power of attorney document.

You’ll also want to:

  • Keep a copy of power of attorney document. Make sure it’s easy to find.

  • Consider getting legal advice about your responsibilities.

  • Make sure you know when the adult wants you to act. A power of attorney can be written so that your attorney has the legal authority to act as soon as it’s signed. However, this doesn’t mean it has to be used immediately. 

Visit our toolkit for managing someone else’s money. Here, you can download a list of tasks you should complete as a new attorney.

Tip

If someone appoints you as their attorney, talk to them about their values, wishes, and beliefs. The best time to have this conversation is when they’re mentally able to express these ideas to you. This includes talking about their attitudes about money and their financial goals, but it extends beyond that too. What we choose to spend our money on impacts other areas of our lives. Try to understand the adult’s wishes in this context. But remember, you only have authority to make decisions about the adult’s financial and legal affairs. For example, if someone else makes a decision that the adult should undergo medical treatment, you must prioritize that expense.

Step 4. If you change your mind, you can resign

Say you’ve agreed to act as attorney, but are no longer willing or able to act. If you want to resign, you must say so in writing. The written decision is called a notice of resignation. You must give the written notice of resignation to the adult (the person who appointed you) and to any other attorneys named in the power of attorney. 

Tip

Nidus Personal Planning Resource Centre and Registry provides a sample notice of resignation and more information on how to resign. 

Common questions

How can I avoid problems with family or friends?

It’s not uncommon: disagreements about money often cause stress and conflict.

Family or friends may not agree with your decisions about the adult’s assets. To help reduce any friction, follow the guidelines in our page about the duties of an attorney

It’s usually easier to deal with questions about a decision when it happens than to deal with suspicion and anger that’s built over time. In the end, you have to make the final decisions.

Sharing information may help. You might want to share any accounting records you prepare or summaries of how you’ve spent the adult’s money — unless they’ve said you shouldn’t. Ask the adult how they feel about information sharing, while they’re still mentally capable to give you an informed answer.

Some family or friends may be so difficult that it is better not to share information with them. Use your best judgment.

Tip

If family or friends don’t agree with your decisions, try to get someone to help sort it out — for example, a family counselor or mediator. But remember, the adult chose you as their decision-maker. Don’t be swayed by others, if it’s not in the adult’s best interests.

  • Reviewed in April 2019
  • This information applies to British Columbia, Canada
  • Time to read: 13 minutes

Reviewed for legal accuracy by

Kevin Smith, Retired lawyer and consultant

Kevin Smith

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