A power of attorney is a legal document in which you authorize another person to take care of financial and legal matters for you. After considering why you might make a power of attorney, learn the steps involved in making a power of attorney.
Choosing your attorney
When you make a power of attorney, the person you authorize to take care of financial and legal matters for you is called the "attorney".
You can choose as your attorney someone who is:
- age 19 or older, and
- able to understand the responsibilities involved.
The law has two restrictions on who you can name as an attorney. You cannot name:
- A caregiver who is paid to provide you with personal or health care services.
- An employee at a facility where you live if the facility provides personal or health care services.
These restrictions do not apply if the person providing the care is your child, parent or spouse.
Most people choose their spouse, a family member or a friend as their attorney.
For a fee you can choose a trust company as your attorney. You can also name the Public Guardian and Trustee (a government official), but you need to check in with them first.
You can name more than one person as your attorney. If you do, you must write in the document whether they will act together or individually. If you don't specify, the default is that they must act together.
If you name only one attorney, it is very important to name an alternate attorney who will take over if something happens to your attorney. Be sure to describe clearly the circumstances when the alternate may take over.
The attorney's powers and responsibilities
When you make a power of attorney, you give someone the legal power to take care of financial and legal matters for you. This might include paying bills, depositing or withdrawing money from your bank account, investing your money, insuring or selling your car, or selling your home.
You can put limits on the power you give your attorney. For example, if you create a limited power of attorney giving your son only the power to deposit your pension cheques, then your son will have the legal power to do only that—deposit your pension cheques.
A power of attorney does not give the attorney authority to make decisions about your health care or personal care. (There are other planning tools for dealing with health and personal care.)
The attorney is like your agent. He or she must act honestly, in good faith and in your best interests. Your attorney must not take a personal benefit from your property.
Your attorney must keep careful records of any financial activities, and must keep your affairs separate from his or her own.
You can still make decisions
Having a power of attorney does not remove your decision-making rights. Decision making is not given away; it is shared between you and the attorney whenever possible. Your attorney cannot override a decision made by you while you are capable.
Your attorney has a legal duty, to the extent reasonable, to foster your independence and encourage your involvement in any decision-making that affects you.
What you can do to prevent misuse of your power of attorney
Be sure you choose someone you trust as your attorney. If possible, name more than one person. Talk to these people before you appoint them and make sure they understand what you expect from them, and when you expect them to act.
You can require the attorney to keep records of your finances and show you those records regularly. You should also review your bank statements.
Even a power of attorney that takes effect as soon as it is signed does not have to be used until you need help. You may want to give the power of attorney document to someone else you trust, and tell him or her when to give it to the attorney.
Before you make a power of attorney you may want to talk to a friend, family member, community advocate, or legal professional. You can also insist that your attorney get legal advice about his or her responsibilities.
Timing of a power of attorney
A power of attorney can be written to come into effect as soon as it is signed. However, even a power of attorney that comes into effect on signing it does not have to be used immediately. Make sure your attorney knows when you want him or her to act.
A limited power of attorney (a power of attorney that limits the attorney’s powers to a specific task or a specific period of time) ends when the task it describes is done, or on the date it specifies. For example, if you make a limited power of attorney to sell a piece of property, the power of attorney ends when the property is sold.
A general power of attorney automatically ends in these circumstances:
- If you become incapable, unless you have an enduring power of attorney clause that makes the power of attorney continue to have effect if you are incapable.
- If your attorney dies, unless you name an alternate or more than one attorney.
- If you die.
- If the court appoints a committee to make decisions for you. A committee (pronounced caw-mi-tay or caw-mi-tee, with emphasis on the end of the word) is a person or body (such as the Public Guardian and Trustee) appointed by the court to look after your legal and financial affairs in the event that you become incapable of managing your affairs.
You can also cancel a power of attorney at any time.
There are special requirements relating to real estate
If you want your attorney to have the power to sell your real estate property or deal with mortgages or easements, there are special requirements.
You must go to a lawyer or notary public to have the document prepared, and here are a few things you should know:
- Your power of attorney must use the exact name that is listed on your real estate property at the Land Title Office. For instance, if the name on the property deed is “Chung Hon Lee”, you cannot use “C.H. Lee” in the power of attorney. If you are not sure of the exact name, do a search at the Land Title Office.
- A power of attorney for real estate gives your attorney the power to sell or transfer property to someone else, but not to him or herself. If you want to include that power, it has to be specifically written in. Discuss this with your lawyer or notary.
- You must sign the power of attorney in the presence of a lawyer or notary, and the lawyer or notary must also sign.
- You must register the power of attorney at the Land Title Office and pay the registration fee. Check with the Land Title Office for the current fee. You can wait to register it, but don’t wait to check with the office to make sure it meets the requirements.
- A power of attorney for real estate ends automatically in three years unless it is an enduring power of attorney (a power of attorney that continues to have effect if you are incapable) or you say in the power of attorney “Section 56 of the Land Title Act does not apply”.
There are special considerations for enduring powers of attorney
With an enduring power of attorney, you can name another person to make financial and legal decisions for you, and the appointment continues—or “endures”—in the event you become mentally incapable. There are special considerations for this type of power of attorney.
Step 1. Choose your attorney
Your attorney will have significant power, so choose someone you trust, and who is comfortable with financial matters. Take the time to talk with that person about what you want and would expect them to do.
If you name only one attorney, it is important to name an alternate attorney who will take over if something happens to your attorney. Be sure to describe clearly the circumstances when the alternate may take over.
Step 2. Prepare the power of attorney
The BC Ministry of Justice has an enduring power of attorney form available online. You do not have to use this form, but it gives you an idea of how to make a power of attorney.
Most people will go to a notary public or a lawyer to prepare their power of attorney. In fact, you must sign the power of attorney in the presence of a notary public or lawyer in order for your attorney to have the power to deal with your real estate.
Particularly if you have a complicated or unusual situation, it’s best to get some professional help. If you go to a lawyer or notary public, find out how much they will charge you. Phone around and compare prices. See the options for free or low-cost legal help.
Step 3. Sign the power of attorney
You must sign a power of attorney with a handwritten signature. (It is one of the few documents that the law in BC dealing with electronic signatures does not apply to.)
Your signature must be witnessed. The witness must be present when you sign, and the witness must sign the power of attorney.
If you want your attorney to have powers relating to real estate or vehicles
In order for your attorney to have the power to sell your real estate or deal with mortgages or easements, you must sign the power of attorney in the presence of a notary public or lawyer. The lawyer or notary must also sign.
In order for your attorney to have the power to sell your vehicle or renew its insurance, your power of attorney may need to be notarized. Notarizing means a notary public puts his or her seal on the document when you make it, to confirm that you and the witness signed it in front of him or her.
If you are making an enduring power of attorney
There are special requirements if you are making an enduring power of attorney (a power of attorney that continues to have effect if you are incapable).
You must sign and date the enduring power of attorney and have the signing witnessed by two witnesses. The witnesses must also sign and date the power of attorney in front of you.
You need only one witness if the witness is a notary public or a lawyer.
The attorney must also sign the enduring power of attorney in front of two witnesses. You and your attorney do not have to sign at the same time.
A person cannot witness a signature if they are being appointed as the attorney, or if they are a spouse, child, or parent of the attorney. Nor can a person witness your signature if they are employed by the attorney, unless you are appointing a lawyer, notary public, the Public Guardian and Trustee, or a financial institution as your attorney.
Step 4. Register the power of attorney for safekeeping
If you have made an enduring power of attorney, you can register it with the Nidus Personal Planning Registry. This secure online service is a centralized registry for storing enduring powers of attorney and other personal planning documents.
You are not required to register an enduring power of attorney. However, it is helpful as a safeguard for your affairs and making your power of attorney available to others who need to know. When you register a planning document, you can permit access to institutions and individuals you trust.
Step 5. Register the power of attorney with the Land Title Office
If your attorney needs to deal with real estate property on your behalf, the power of attorney must be registered with the Land Title Office. Sometimes people do this at the time they make the power of attorney or let their attorney do it if the time comes.
Do I have to pay my attorney?
Your attorney is entitled to be paid back for any reasonable out-of-pocket expenses. If you want to pay your attorney a fee, you must write this in the power of attorney. The document must authorize the fee and set out the rate.
If a trust company or the Public Guardian and Trustee is your attorney, they will ask you to sign an agreement that says they can charge fees.
Can my attorney be someone who lives in another province?
Yes. The person you name as your attorney does not have to live in British Columbia.
If I have property in another province or territory, will my BC power of attorney apply?
Possibly. However, the safest approach is to check with a lawyer in that province or territory.
What about powers of attorney made in another province or country?
Each province in Canada has its own laws and procedures for powers of attorney. This information applies to residents of British Columbia who have finances and property in BC. For information about powers of attorney in another province or country, it’s best to consult a legal professional. You may also want to check your local library or bookstores for a book called Power of Attorney Kit by Self Counsel Press, or contact a public legal education and information provider in your province.
If I made a power of attorney ten years ago, is it still good?
Yes. However, you should check it over to make sure that it will do what you want and the information is accurate. You may decide to make a new one.
It’s a good idea to review all your financial affairs (including your will) every two or three years. Addresses change, and so do people’s lives. Stay up to date.
MyLawBC, an online resource from Legal Services Society (the agency that provides legal aid in British Columbia), provides a “guided pathway” on personal planning options. The site asks you a series of questions, and based on your answers, provides an action plan of what planning documents you need and how to get them.
Nidus Personal Planning Resource Centre and Registry provides detailed information and assistance to get you started on enduring powers of attorney, representation agreements, and advance directives.
Some of the options for free or low-cost legal help may be helpful if you are making a power of attorney.