What is a power of attorney?

Estate Planning in BC
What is a power of attorney?

A power of attorney is a document that appoints another person, called an “attorney,” to make financial and legal decisions for you.

A power of attorney can be very specific. For example, you may give your daughter a power of attorney just to cash your old age security pension cheques for you. In fact, you can get power of attorney forms for cashing these cheques at your local federal Service Canada office. Your bank can also give you a form if you need a power of attorney for a specific bank account.

A power of attorney can also be very general. If you wish, you can give your attorney very wide powers to deal with all of your assets.

There are specific rules for powers of attorney dealing with real estate
The Land Title Act requires the attorney to do certain things and follow certain procedures, and there are certain rules that apply. For example, a power of attorney dealing with real estate is only valid for three years from the date of signing, unless otherwise specified or unless it is an enduring power of attorney as described in the Power of Attorney Act. You can get a copy of the Land Title Act at your local library or find it on the government’s legislation website at www.legis.gov.bc.ca. But because real estate involves large amounts of money, you should consult a lawyer for real estate transactions rather than trying to do it yourself.

Who should you appoint as your attorney?

Consider carefully who to appoint as your attorney and the powers you want to give. It’s important that you trust that person’s honesty and judgment. If you have no family member or friend that you can or want to appoint, you can appoint a respected professional such as your lawyer, accountant or trust company. As a power of attorney gives your attorney very broad power, it can cause you a lot of harm if misused.

Does the person you appoint have to act as your attorney?

No. Merely granting a power of attorney to someone (and even delivering the written document to them) doesn’t mean that this person has to act as your attorney if they don’t want to. The attorney doesn’t have to take any specific steps to say “no,” or to later decline to act if they no longer wish to be the attorney.

How do you end a power of attorney?
The most effective way to terminate a power of attorney is to give your attorney a written notice saying that their power has ended AND GET THE ORIGINAL BACK, and preferably also to destroy all originals or duplicates of the document (to prevent misuse by the terminated attorney). To cancel or revoke a power of attorney dealing with land, you must file a document called a “Notice of Revocation” in the Land Title Office where the land is registered. The court can also terminate a power of attorney – this might happen if your attorney abuses their power. It’s also possible to put an end-date in the document itself.

A power of attorney automatically ends in certain circumstances
It automatically ends when you die or if you become bankrupt. It also ends if you become mentally incompetent, unless you say that the power should continue, and then you’ve made an “enduring power of attorney.”

What is an enduring power of attorney?

An enduring power of attorney allows your attorney to make the necessary financial and legal decisions for you in case you become mentally incapable because of age, accident or illness. To make an enduring power of attorney, the document must say that the agreement will continue to be in effect if you’re no longer able to make decisions for yourself.

When is an enduring power of attorney useful?

An enduring power of attorney may help avoid having the court appoint a “committee” of one or more people to look after your legal and financial affairs in the event that you become mentally incompetent. A committee appointment is much more expensive than making an enduring power of attorney.

What decisions can be delegated with a power of attorney?

A power of attorney is used to delegate financial and most legal decisions. This is true for both a power of attorney and an enduring power of attorney. But your attorney cannot make medical or health care decisions for you, such as consenting to surgery or dental work for you. For these decisions, you need to make what’s called a “representation agreement.”

What is a representation agreement?

The Representation Agreement Act allows you to appoint someone as your legal representative to handle your financial, legal, personal care and health care decisions, if you’re unable to make them on your own. The document is called a representation agreement, and it creates a contract between you and your representative.

Your representative has certain duties they must follow. For example, your representative must consult with you, as much as is reasonable, to determine your wishes. Generally speaking, unless your representative is your spouse, the representation agreement must name another person as a “monitor” to help ensure that the representative lives up to their duties, or the agreement must state that a monitor isn’t required.

Are there different types of representation agreements?

There are two types:

Section 7 limited agreement – to cover straightforward, everyday decisions
Section 9 general agreement – to deal with complex legal, personal care and health care matters

A Section 9 agreement is needed for your representative to make such decisions as refusing life support if you become terminally ill.

Do you need a lawyer to make a representation agreement?

The law says you must consult a lawyer to make a Section 9 agreement, but you should actually see a lawyer for both agreements. A lawyer can help you to understand the wide range of issues that arise with a representation agreement.

Can you register these documents somewhere?

At the Nidus Personal Planning Resource Centre & Registry, you can register both enduring powers of attorney and representation agreements. Hospitals, banks and government services can search there to find out who your attorney or representative is if they need to. See www.nidus.ca.

Summary

A power of attorney is a document that allows you to give another person, called the attorney, the authority to act for you in financial and legal matters. The power can be as specific or as general as you wish. But unless you use an enduring power of attorney, it will automatically end if you become mentally incompetent. A representation agreement, on the other hand, can cover personal care and health care decisions, as well as certain financial and legal decisions, if you’re unable to make them on your own.

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