Power of Attorney (15:IV) - Revision history

LSLAP at 20:17, 23 November 2019

2019-11-23T20:17:14Z

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	'''NOTE''': It is possible, and even common, for an adult to appoint an attorney under the PAA (to make financial decisions) and appoint a different person as a representative, under the RAA (to make health care decisions). This commonly happens where a person who knows the personal wishes and values of the adult is adept at handling health care decisions, and a more financially astute person is chosen as attorney.		'''NOTE''': It is possible, and even common, for an adult to appoint an attorney under the PAA (to make financial decisions) and appoint a different person as a representative, under the RAA (to make health care decisions). This commonly happens where a person who knows the personal wishes and values of the adult is adept at handling health care decisions, and a more financially astute person is chosen as attorney.


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LSLAP at 07:03, 15 August 2019

2019-08-15T07:03:21Z

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LSLAP at 00:56, 13 August 2017

2017-08-13T00:56:45Z

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LSLAP at 23:26, 12 August 2017

2017-08-12T23:26:40Z

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	The Adult can make very individualized and specific provisions in a POA. For example, a POA can be very narrow in scope, allowing the Attorney(s) to do one specific act e.g. cashing a pension cheque, transferring property, or paying insurance). Alternatively, the Adult can make a POA that is intentionally broad in scope, allowing the Attorney(s) to handle all financial decisions on behalf of the Adult.		The Adult can make very individualized and specific provisions in a POA. For example, a POA can be very narrow in scope, allowing the Attorney(s) to do one specific act e.g. cashing a pension cheque, transferring property, or paying insurance). Alternatively, the Adult can make a POA that is intentionally broad in scope, allowing the Attorney(s) to handle all financial decisions on behalf of the Adult.

	~~Students~~ should ~~confer with their Supervising Lawyer if there is any doubt~~ that the ~~client~~ understands and appreciates the nature and consequences of a POA. ~~Also, note that an adult should not be required to have a POA as a condition of receiving any good or service.~~		Anyone aiding another to create a POA should ensure that the adult understands and appreciates the nature and consequences of a POA.

	The following sections explain in more detail: what type of POAs can be made; who is involved in a POA; how a POA can be made, changed, or revoked; the duties and powers of an Attorney; and what can be done if an adult is incapable and does not have a valid POA in place.		The following sections explain in more detail: what type of POAs can be made; who is involved in a POA; how a POA can be made, changed, or revoked; the duties and powers of an Attorney; and what can be done if an adult is incapable and does not have a valid POA in place.
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	The two types of POA are as follows:		The two types of POA are as follows:
	#'''General:''' General POAs are governed by Part 1 of the ''Power of Attorney ~~Act''~~, and by common law for agency relationships. These are effective immediately, or as specific on the document, and ongoing until the loss of capacity, revocation or death. The test for capacity for making general POAs can be found in the BCLI’s [http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-law_Tests_of_Capacity_FINAL.pdf Report on Common Law Test of Capacity].		#'''General:''' General POAs are governed by Part 1 of the Power of Attorney Ac, and by common law for agency relationships. These are effective immediately, or as specific on the document, and ongoing until the loss of capacity, revocation or death. The test for capacity for making general POAs can be found in the BCLI’s Report on Common Law Test of Capacity:[http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-law_Tests_of_Capacity_FINAL.pdf Report on Common Law Test of Capacity].
	#'''Enduring:''' Enduring POAs (EPOAs) are governed by ~~Part~~ 2 of the ''Power of Attorney Act''. These can be effective immediately, or springing. (See note below for details on springing EPOAs.) Enduring POAs ~~continues~~ in the event that the Adult lose capacity, and only ends upon revocation or death.		#'''Enduring:''' Enduring POAs (EPOAs) are governed by Parts 2 and 3 of the Power of Attorney Act. These can be effective immediately, or springing. (See note below for details on springing EPOAs. ) Enduring POAs continue in the event that the Adult lose capacity, and only ends upon revocation or death.
	#*'''NOTE:''' A springing EPOA stays dormant until a future date or event (i.e. the loss of capacity) and ends only upon death. The Adult can decide in advance how capacity is to be determined, such as by requiring the agreement of a family member and two doctors. A springing EPOA is not active until the adult loses capacity. See ''Goodrich v British Columbia (Registrar of Land Titles)'', 2004 BCCA 100. (The BCCA decided that even though the PAA does not explicitly allow for a springing power of attorney, it is nevertheless possible to make one.)		#*'''NOTE:''' A springing EPOA stays dormant until a future date or event (i.e. the loss of capacity) and ends only upon death. The Adult can decide in advance how capacity is to be determined, such as by requiring the agreement of a family member and two doctors. A springing EPOA is not active until the adult loses capacity. See ''Goodrich v British Columbia (Registrar of Land Titles)'', 2004 BCCA 100. (The BCCA decided that even though the PAA does not explicitly allow for a springing power of attorney, it is nevertheless possible to make one.)

Desy Wahyuni: /* D. Other Jurisdictions */

2017-01-05T21:35:11Z

D. Other Jurisdictions

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	*is in accordance with the laws and continues to have legal effect in the jurisdiction in which it was made.		*is in accordance with the laws and continues to have legal effect in the jurisdiction in which it was made.

	Furthermore, s 4(3) requires a certificate from a solicitor permitted to practise in the jurisdiction in which the deemed enduring power of attorney was made indicating that the deemed enduring power of attorney meets the requirements set out in subsection (2) (a) to (c). Section 4(4) states that the EPOA is limited by the PAA and the jurisdiction in which the deemed enduring power of attorney was made.		Furthermore, s 4(3) requires a certificate from a solicitor permitted to practise in the jurisdiction in which the deemed enduring power of attorney was made indicating that the deemed enduring power of attorney meets the requirements set out in subsection (2) (a) to (c). Section 4(4) states that the EPOA is limited by the PAA and the jurisdiction in which the deemed enduring power of attorney was made. Section 4(4) also requires that an Attorney and the Adult must both be at least 19 years of age before the Attorney can exercise any powers or perform any duties.

	Section 4(4) also requires that an Attorney and the Adult must both be at least 19 years of age before the Attorney can exercise any powers or perform any duties.

	== E. Acting as an Attorney ==		== E. Acting as an Attorney ==

Desy Wahyuni: /* B. Who is Involved in a Power of Attorney? */

2016-11-15T19:58:05Z

B. Who is Involved in a Power of Attorney?

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	In some situations, the Public Guardian and Trustee can be appointed as the Attorney, particularly where an adult does not have family or friends who can act on his or her behalf. The Public Guardian and Trustee may also become involved where there is financial abuse, neglect or self-neglect, particularly if there are concerns that an Attorney is misusing a POA, or concerns that an Attorney is failing to fulfill their legal duties.		In some situations, the Public Guardian and Trustee can be appointed as the Attorney, particularly where an adult does not have family or friends who can act on his or her behalf. The Public Guardian and Trustee may also become involved where there is financial abuse, neglect or self-neglect, particularly if there are concerns that an Attorney is misusing a POA, or concerns that an Attorney is failing to fulfill their legal duties.

	Below is a brief description of how an Adult, Attorney(s) and the Public Guardian and Trustee are involved in a POA. For more detailed information about the mental capacity of an Adult, refer to [[Introduction to Adult Guardianship (15:II)#1. Power of Attorney (POA) \| section II.B.1: Mental Capacity – Power of Attorney]]. For more information about reporting abuse or neglect to the Public Guardian and Trustee, refer to [[Adult Abuse and Neglect (15:VIII) \| section VIII: Abuse and Neglect]] in this chapter.		Below is a brief description of how an Adult, Attorney(s) and the Public Guardian and Trustee are involved in a POA. For more detailed information about the mental capacity of an Adult, refer to [[Introduction to Adult Guardianship (15:I)#1. Power of Attorney (POA) \| section I.B.1: Mental Capacity – Power of Attorney]]. For more information about reporting abuse or neglect to the Public Guardian and Trustee, refer to [[Adult Abuse and Neglect (15:VIII) \| section VIII: Abuse and Neglect]] in this chapter.

	== 1. The Adult ==		== 1. The Adult ==

Desy Wahyuni: /* A. Types of POA */

2016-10-28T18:32:28Z

A. Types of POA

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	In most cases, the POA will be effective immediately, once signed and witnessed by the Adult and Attorney(s), and will continue on an ongoing basis. The most common POA is the Enduring Power of Attorney (EPOA), which allows the Attorney to act while the Adult is capable and continues when/if the Adult becomes incapable. General POAs are rarely used in incapacity planning, as they become '''no longer in effect''' when an adult becomes incapable (which is often when a POA is most needed).		In most cases, the POA will be effective immediately, once signed and witnessed by the Adult and Attorney(s), and will continue on an ongoing basis. The most common POA is the Enduring Power of Attorney (EPOA), which allows the Attorney to act while the Adult is capable and continues when/if the Adult becomes incapable. General POAs are rarely used in incapacity planning, as they become '''no longer in effect''' when an adult becomes incapable (which is often when a POA is most needed).

	'''NOTE:''' Unless otherwise specified, all usage of the term “POA” in the subsequent sections of this chapter refers to an Enduring Power of Attorney as governed by Part 2 of the ''Power of Attorney Act''.		:'''NOTE:''' Unless otherwise specified, all usage of the term “POA” in the subsequent sections of this chapter refers to an Enduring Power of Attorney as governed by Part 2 of the ''Power of Attorney Act''.

	== B. Who is Involved in a Power of Attorney? ==		== B. Who is Involved in a Power of Attorney? ==

Desy Wahyuni: /* 1. Misuse and Abuse of a POA */

2016-10-28T18:31:10Z

1. Misuse and Abuse of a POA

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	*[http://www.acelaw.ca Advocacy Centre for the Elderly]		*[http://www.acelaw.ca Advocacy Centre for the Elderly]

	'''NOTE:''' It is possible, and even common, for an Adult to appoint an Attorney under the PAA (to make financial decisions) and appoint a different person as a Representative, under the RAA (to make health care decisions). This commonly happens where a person who knows the personal wishes and values of the adult is adept at handling health care decisions, and a more financially astute person is chosen as Attorney.		:'''NOTE:''' It is possible, and even common, for an Adult to appoint an Attorney under the PAA (to make financial decisions) and appoint a different person as a Representative, under the RAA (to make health care decisions). This commonly happens where a person who knows the personal wishes and values of the adult is adept at handling health care decisions, and a more financially astute person is chosen as Attorney.


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Desy Wahyuni: /* 1. Misuse and Abuse of a POA */

2016-06-24T03:26:09Z

1. Misuse and Abuse of a POA

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	Power of Attorney abuse is a constant concern and an unfortunately frequent occurrence. The abuse may manifest in pressure to grant a POA, or misuse of funds or property under a POA. Try to meet with the client alone, or at least without the potential Attorney in the room, in order to be certain that the client truly wishes to create a POA and grant powers to the potential Attorney in question. Make sure to inquire about the relationship between the client and the proposed Attorney, and be on alert for possible undue influence or fraud. Refer to BCLI Guide on Undue Influence, above, for a full checklist of considerations and what to watch for. For more information about abuse and neglect of older adults, you can also consult the following resources:		Power of Attorney abuse is a constant concern and an unfortunately frequent occurrence. The abuse may manifest in pressure to grant a POA, or misuse of funds or property under a POA. Try to meet with the client alone, or at least without the potential Attorney in the room, in order to be certain that the client truly wishes to create a POA and grant powers to the potential Attorney in question. Make sure to inquire about the relationship between the client and the proposed Attorney, and be on alert for possible undue influence or fraud. Refer to BCLI Guide on Undue Influence, above, for a full checklist of considerations and what to watch for. For more information about abuse and neglect of older adults, you can also consult the following resources:
	*~~BC Centre for Elder Advocacy and Support:~~ http://www.bcceas.ca		*[http://www.bcceas.ca BC Centre for Elder Advocacy and Support]
	*Canadian Centre for Elder ~~Law:~~ http://www.bcli.org/ccel		*[http://www.bcli.org/ccel Canadian Centre for Elder Law]
	*~~Public Guardian & Trustee:~~ http://www.trustee.bc.ca		*[http://www.trustee.bc.ca Public Guardian & Trustee]
	*~~Vancouver Coastal Health: Resource:~~ http://www.vchreact.ca		*[http://www.vchreact.ca Vancouver Coastal Health: Resource]
	*~~Advocacy Centre for the Elderly website:~~ http://www.acelaw.ca		*[http://www.acelaw.ca Advocacy Centre for the Elderly]

	'''NOTE:''' It is possible, and even common, for an Adult to appoint an Attorney under the PAA (to make financial decisions) and appoint a different person as a Representative, under the RAA (to make health care decisions). This commonly happens where a person who knows the personal wishes and values of the adult is adept at handling health care decisions, and a more financially astute person is chosen as Attorney.		'''NOTE:''' It is possible, and even common, for an Adult to appoint an Attorney under the PAA (to make financial decisions) and appoint a different person as a Representative, under the RAA (to make health care decisions). This commonly happens where a person who knows the personal wishes and values of the adult is adept at handling health care decisions, and a more financially astute person is chosen as Attorney.

Desy Wahyuni: /* H. A Practical Clinic Approach to POAs for LSLAP Students */

2016-06-24T03:24:20Z

H. A Practical Clinic Approach to POAs for LSLAP Students

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 #*inability to answer open ended questions.
 #**Refer to BCLI [http://www.bcli.org/bclrg/projects/project-potential-undue-influence-recommended-practices-wills-practitioners Guide on Undue Influence] for a full checklist.
-#Why does the client want a POA? 3.For what purpose does the client require someone else to manage their financial affairs? 4.Does the client need to authorize broad powers, or can powers be narrowly defined and still meet the needs of the client? 5.What tasks does the Attorney need to be authorized to do to meet the client’ s needs? 6.When does the POA need to start? 7.Is it appropriate for the POA to have a built-in expiration date? 8.Has the client thought about who they wish to appoint as Attorney(s)?
+#Why does the client want a POA?