What are my rights?
With an enduring power of attorney, you can plan in advance for future incapacity. You do this by naming someone you trust to manage your financial affairs. Anyone can lose the ability to make decisions at any time. No matter what age you are, it’s best to plan ahead. Learn what to watch for when preparing your enduring power of attorney.
Are you preparing a power of attorney during coronavirus? There is currently a ministerial order in place temporarily allowing for the remote signing and witnessing of enduring powers of attorney. The framework allows for you and your witness to be in each other’s electronic presence, so long as the witness is a lawyer or notary public. The same applies for the attorney and their witness.
What you should know
Why prepare an enduring power of attorney
We can't predict the future. No one can know if or when they might get sick or become mentally incapable. Preparing an enduring power of attorney is one of the simplest and most powerful ways to plan for your financial future.
If you become incapable of managing your financial and legal affairs, no one, not even your spouse, has the automatic right to step in. So the beginning of a sound plan is to explicitly give someone the authority to act for you, if that’s ever needed.
Your attorney’s authority to act for you can start right away and then continue — or endure — if you are incapable. This often includes paying bills and managing bank accounts. It can include bigger things like investing your money, insuring your car, or selling your assets. The word attorney here doesn’t mean lawyer. It simply means your decision-maker.
You needn’t worry that drawing up a power of attorney will immediately strip you of the ability to run your own life. Your attorney can’t override decisions you make while you’re capable.
The importance of planning ahead
It is “too late” to sign a power of attorney if you can no longer understand what a power of attorney document does. Anyone can lose the ability to make decisions at any time. No matter what age you are, it’s best to plan ahead.
You need to be legally capable to make a power of attorney
“Suffering from Alzheimer’s disease, my client Elizabeth is not able to recall what she owns — her bank accounts, vehicles, real estate, and so on. She would be considered incapable of making an enduring power of attorney. However, she might still be able to make a standard representation agreement."
– Sylvia, a lawyer in Kelowna, BC
You can make an enduring power of attorney if you’re at least 19 years of age and are capable of understanding the nature and consequences of the making the power of attorney. The law presumes you’re capable unless you’ve demonstrated that you’re not.
The law says you must understand all of the following six factors to be capable of making an enduring power of attorney:
The obligations you owe to your dependants (such as children).
The property you own and its approximate value.
That your property may decrease in value if your attorney doesn’t manage it carefully.
That your attorney will be able to do anything with your property that you could do if you were capable, except make a will.
That your attorney might misuse their authority.
That you can revoke (that is, cancel) the enduring power of attorney while you are mentally capable.
When it comes to signing an enduring power of attorney, it’s a legal standard that must be applied. A medical diagnosis is relevant, but not decisive. For example, someone in the early stages of Alzheimer’s might be experiencing some level of cognitive decline, but still satisfy the six-part test.
Who can be your attorney
The person you authorize to take care of financial and legal affairs for you is called the attorney.
Your attorney must be:
age 19 or older, and
able to understand the responsibilities involved.
Your attorney cannot be:
a paid caregiver, or
an employee at a facility where you live if the facility provides personal or health care services.
These restrictions don’t apply if the person providing the care is your child, parent or spouse.
When an enduring power of attorney can be used
Your attorney’s authority to act for you can start right away, and then continue — or endure — after you are mentally incapable, whether due to illness or an accident or age-related decline.
You must state in your enduring power of attorney whether your attorney has the authority to:
Start acting right away, while you’re capable. For example, you may want them to help you with complex matters, and continue to help you if you become incapable; or
Act only if you become incapable.
A springing power of attorney
An enduring power of attorney can be written so that it doesn’t come into effect until something triggers it. This is called a springing power of attorney. The triggering event might be that two physicians have declared you mentally incapable. At that point the attorney you’ve chosen in advance can take over your affairs.
The attorney's powers and responsibilities
The attorney’s powers
It’s your choice how much power you want to give to your attorney. You can give your attorney broad powers to do just about anything with your property and money. Or you can choose to limit your attorney’s power, such as dealing only with a specific bank account.
Nidus Personal Planning Resource Centre and Registry explains the general and specific authorities you can give to your attorney under an enduring power of attorney. It’s best to talk to a lawyer or notary public if you have questions about how much power you want to give to your attorney.
Health and personal care decisions
A power of attorney only gives your attorney authority to make decisions about your financial and legal affairs. There are other planning tools for dealing with health care and personal care.
The attorney’s responsibilities
At any time a power of attorney is used, your attorney must foster your independence and encourage your involvement in decision-making, to the extent this is reasonable. They must do this even if you’ve become incapable of handling your own affairs.
The attorney is like your agent. They must:
act honestly, in good faith, and in your best interests;
not take any personal benefit from your assets;
keep accurate records of any financial activities; and
keep your affairs separate from their own.
There are special requirements relating to real estate
If you own property, you may want your attorney to be able to sell it or otherwise handle it. Anyone who owns their own home should consider this. If you want your attorney to be able to deal with real estate (called real property), here are a few things you should know:
You need to have a lawyer or a notary public prepare the document. You must sign the power of attorney in the presence of a lawyer or notary, and the lawyer or notary must also sign.
Your power of attorney must use the exact name that’s listed on your property with the land title office. For instance, if the name on the property deed is “Chung Hon Lee,” you can’t use “C.H. Lee” in the power of attorney. Do a search through the land title office if you’re not sure what name you used.
You must register the power of attorney at the land title office and pay the registration fee. Check with the office to make sure your power of attorney meets the requirements as soon as you’ve prepared it.
Your attorney can’t sell or transfer your property to themselves. If you want to include that power, it has to be specifically written in. Discuss this with your lawyer or notary.
A power of attorney for real property ends automatically in three years. This applies unless it’s an enduring power of attorney or you say in the power of attorney “section 56 of the Land Title Act does not apply."
When an enduring power of attorney ends
There are different ways a power of attorney can end. If you limited your attorney’s power, the power of attorney ends when the job it describes is done or when the specified time period ends.
An enduring power of attorney automatically ends in these circumstances:
If your attorney dies, unless you name an alternate or more than one attorney.
If you die.
You can cancel a power of attorney at any time.
If a committee of estate is appointed to make legal and financial decisions for you.
If your attorney is your spouse, and your relationship ends (unless the document specifically says that their authority continues even if your relationship ends.)
If someone misuses your power of attorney
Misusing a power of attorney is a crime. If your attorney abuses his or her power, cancel the power of attorney immediately and then seek legal advice. You may be able to sue your attorney to get back any money or property that has been taken.
If you’re incapable and can’t cancel your power of attorney, you or someone else can call the Public Guardian and Trustee or a designated responder with your local health authority and report the situation. They will investigate.
Prepare your enduring power of attorney
Step 1. Choose your attorney
Choosing your attorney is an important decision, and it's not always easy. Your attorney will have significant powers and responsibilities.
Most people ask a family member or close friend to be their attorney. You can also ask a lawyer, a notary public, or a private trust company. You can also name the Public Guardian and Trustee, but you need to check in with them first.
Important things to consider when choosing an attorney include the following:
Trust. The most important thing is to choose someone you trust. Your attorney will have access to all of your money and property. You need to be confident they won’t misuse their power.
Ability. The law says the person you choose needs to understand the responsibilities involved. Think about how complex your finances are, and choose someone you know can deal with them.
Loyalty. Will the person you choose ensure your needs and wishes — not theirs — come first? Take the time to talk with your candidate about what you want and would expect of them. Make sure they’re comfortable making decisions for you.
Age and proximity. Your attorney must be at least 19 years old. They can be someone who lives outside the province, but that’s not always recommended. Think about what you’re asking your attorney to do. It’s often more convenient if they live close by.
Family dynamics. Consider your family dynamics. Will appointing a particular person cause tension or disagreement? If you want to name two attorneys, will they be able to make decisions together?
You can name more than one person as your attorney
If you do name more than one attorney, you must write in the document whether they will act together or individually. If you name only one attorney, it’s important to consider also naming an alternate who will take over if something happens to your first attorney. You need to clearly describe the circumstances in which an alternate may take over.
Step 2. Make the enduring power of attorney
Most people will go to a notary public or a lawyer to prepare their enduring 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 property.
If you decide to 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.
You must include a statement in your enduring power of attorney about whether your attorney has authority to act while you are capable of making decisions about your financial affairs, or only while you’re incapable of making those types of decisions.
You must also include a statement that this authority continues if you become incapable.
Enduring power of attorney form
The BC government has an enduring power of attorney form. You don’t have to use this form, but it gives you an idea of how to make an enduring power of attorney.
Step 3. Consider what you can do to prevent misuse of your power of attorney
There are things you can do to ensure your power of attorney isn’t abused. You can choose to:
Talk to a friend, family member, community advocate, or legal professional before preparing a power of attorney.
Name more than one person to act as attorney. Make sure the people you name will work well together to make decisions on your behalf.
Put limits on the power you give your attorney. You can require the attorney to keep records of your finances and show you those records regularly. You should also review your bank statements.
Appoint a monitor to oversee the activities of your attorney.
Give the power of attorney document to someone else you trust, and tell them when to give it to the attorney. Even a power of attorney that takes effect as soon as it’s signed doesn’t have to be used until you need help.
Learn about an attorney’s responsibilities.
Insist that your attorney get legal advice about their responsibilities.
Step 4. Sign the enduring power of attorney
You must sign an enduring 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.)
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 don’t have to sign at the same time.
Who can be a witness
A person can’t 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’re employed by the attorney, unless you’re appointing a lawyer, notary public, the Public Guardian and Trustee, or a financial institution as your attorney.
If you want your attorney to have powers relating to real property or vehicles
In order for your attorney to have the power to sell your real property 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.
Step 5. Share your attitudes about money with your attorney
Be clear with your attorney about your values, intentions and desires for your money and property. This is an important part of planning that’s often overlooked. It’s one of the best ways to ensure your affairs will be managed the way you want. Nidus has a Values and Beliefs Discussion Guide you can use to help you get started. See the section on attitudes about finances.
Step 6. Register the enduring power of attorney for safekeeping
You can choose to register your enduring power of attorney 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.
Registering your document will act as a safeguard for your affairs. When you register a planning document, you can permit access to institutions and individuals you trust (such as your bank).
Step 7. Register the enduring power of attorney with the land title office
If your attorney needs to deal with real 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 they ever need to deal with real property.
Do I have to pay my attorney?
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. Even if you don’t pay your attorney, they’re entitled to be paid back for any reasonable out-of-pocket expenses.
If a trust company or the Public Guardian and Trustee is your attorney, they’ll ask you to sign an agreement that says they can charge fees.
Is an enduring power of attorney made in one province okay in another?
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.
If I prepared 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 every two or three years. Addresses change, and so do people’s lives. Stay up to date.