Difference between revisions of "Power of Attorney (15:IV)"
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== C. Creating a Power of Attorney == | == C. Creating a Power of Attorney == | ||
The most important aspect of drafting a POA is to ensure that the document accurately reflects the adult’s specific wishes. Questions to ask include: | The most important aspect of drafting a POA is to ensure that the document accurately reflects the adult’s specific wishes. Questions to ask include: | ||
*What does the | |||
*Does the | *What does the Adult want to do? | ||
*Does the | *Does the Adult have capacity to make this POA? | ||
*Does the | *Does the Adult understand the nature of this POA? | ||
*Has the | *Does the Adult understand the potential legal impact of this POA? | ||
*What type of authority does the Attorney need? | *Has the Adult received suitable independent legal advice? | ||
*Does the Adult want to limit the Attorney’s authority? | *What type of authority does the Attorney need? | ||
*When should the POA be in effect (i.e. ongoing or limited?) | *Does the Adult want to limit the Attorney’s authority? | ||
*Has the | *When should the POA be in effect (i. e. ongoing or limited?) | ||
*Has the Adult created other POAs? | |||
Any adult can draft a POA. However, it is advisable that an adult consults a lawyer or notary prior to finalizing a POA. Independent legal advice will help ensure that the POA only grants an Attorney the powers and authority that the Adult wants to give. | Any adult can draft a POA. However, it is advisable that an adult consults a lawyer or notary prior to finalizing a POA. Independent legal advice will help ensure that the POA only grants an Attorney the powers and authority that the Adult wants to give. | ||
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*signed and dated by the Attorney(s) who agree to act in the presence of two witnesses (unless one witness is a lawyer or a notary). | *signed and dated by the Attorney(s) who agree to act in the presence of two witnesses (unless one witness is a lawyer or a notary). | ||
A new POA will need to be signed by both the Adult and the Attorney(s). These signatures do not need to be in each other’s presence. In other words, the Attorney and Adult may sign the document separately. However, these signatures must each be witnessed by two capable adults (unless one witness is a lawyer or notary). | A new POA will need to be signed by both the Adult and the Attorney(s). These signatures do not need to be in each other’s presence. In other words, the Attorney and Adult may sign the document separately. However, these signatures must each be witnessed by two capable adults (unless one witness is a lawyer or notary). | ||
As of September 1, 2011, an Attorney must sign an EPOA in the presence of two witnesses before assuming their authority (PAA, s 17). If a person who is named as an Attorney does not sign the POA, then the person is not required or legally able to act as an Attorney. If a person named as Attorney does not sign, the authority of any other named Attorney is not affected (unless the POA states otherwise). | As of September 1, 2011, an Attorney must sign an EPOA in the presence of two witnesses before assuming their authority (PAA, s 17). If a person who is named as an Attorney does not sign the POA, then the person is not required or legally able to act as an Attorney. If a person named as Attorney does not sign, the authority of any other named Attorney is not affected (unless the POA states otherwise). | ||
According to s 16(6), the following persons must not act as a witness to the signing of an EPOA: | According to s 16(6), the following persons must not act as a witness to the signing of an EPOA: | ||
*a person named as an Attorney; | |||
*a spouse, child or parent of a person named as an Attorney; | *a person named as an Attorney; | ||
*an employee or agent of a person named as an Attorney, unless the person named as an Attorney is a lawyer, a notary, the Public Guardian or Trustee or a financial institution authorized to carry on trust business under the | *a spouse, child or parent of a person named as an Attorney; | ||
*a person who is not at least 19 years of age; or | *an employee or agent of a person named as an Attorney, unless the person named as an Attorney is a lawyer, a notary, the Public Guardian or Trustee or a financial institution authorized to carry on trust business under the Financial Institutions Act; | ||
*a person who is not at least 19 years of age; or | |||
*a person who does not understand the type of communication used by the Adult (unless interpretive assistance is used). | *a person who does not understand the type of communication used by the Adult (unless interpretive assistance is used). | ||
Although there is no legal requirement to register a POA, an EPOA can be registered through the | The Power of Attorney Act [PAA] provides a standard form that can be used to create a POA. The most up-to-date version of this form is generally also posted on the government of BC website: www. bclaws. ca. | ||
Although there is no legal requirement to register a POA, an EPOA can be registered through the Personal Planning Registry. More information about this service is available on their website: http://www. nidus. ca. | |||
=== 2. Land Transactions === | === 2. Land Transactions === | ||
An Adult might authorize the Attorney(s) to make a transaction involving land (i.e. transfer of title, closure of sale of property, etc.) on | An Adult might authorize the Attorney(s) to make a transaction involving land (i. e. transfer of title, closure of sale of property, etc. ) on behalf of the Adult. If the authority of an Attorney involves transactions concerning land and land title, then the POA must be executed and witnessed in accordance with the Land Title Act [LTA]. | ||
A POA that grants authority to the Attorney to make land transactions will expire after 3 years of its execution. There is an exception to this where an Adult signs an EPOA, or the POA expressly exempts itself from these provisions (s 56 of the LTA). | A POA that grants authority to the Attorney to make land transactions will expire after 3 years of its execution. There is an exception to this where an Adult signs an EPOA, or the POA expressly exempts itself from these provisions (s 56 of the LTA). | ||
A POA that confers the power to deal with land transactions and registration of land titles must be witnessed and notarized by a lawyer who is a member of the Law Society of British Columbia or a notary who is a member of the Society of Notaries Public of British Columbia. This is | A POA that confers the power to deal with land transactions and registration of land titles must be witnessed and notarized by a lawyer who is a member of the Law Society of British Columbia or a notary who is a member of the Society of Notaries Public of British Columbia. This is because POAs that involve land transactions require more care and consultation to ensure that the Adult is aware of the legal impact of conveying this authority to the Attorney(s). | ||
=== 3. Banks, Credit Unions and Other Financial Service Providers === | === 3. Banks, Credit Unions and Other Financial Service Providers === | ||
Financial institutions and agents (e.g. banks, credit unions, investment advisors, customer service Representatives, estate planners, etc.) | Financial institutions and agents (e. g. banks, credit unions, investment advisors, customer service Representatives, estate planners, etc. ) may ask individuals to complete their institution’s POA. This request normally occurs where, for example, an Adult wishes to grant the Attorney access to bank accounts for the purpose of paying bills, making transfers, etc. The financial institution may request that the Adult and Attorney to fill out their institution’s Limited POA. For more information about financial institution’s POA requirements and joint accounts refer to the Canadian Bankers Association website. They have created a PDF accessible at http://www. cba. ca/en/consumer-information/92-protecting-yourself-from-financial-abuse/694-powers-of-attorney-what-consumers-need-to-know. | ||
If the | If the Adult signs an institution’s POA, this can sometimes create a conflict between POAs. These important questions should be asked: | ||
*What does the Adult want to do? | |||
*What kind of POA should apply? | |||
*Is the financial institution’s form suitable? | |||
*Has the Adult received suitable independent legal advice? | |||
The Adult should not sign a POA form without seeking legal advice. For more information on preparing documents, consult the Appendix or organisations such as Nidus Personal Planning Resource Centre and Registry. Contact information may be found in section II. C: Resource Organizations of this chapter. | |||
== D. Other Jurisdictions == | == D. Other Jurisdictions == | ||
As of September 1, 2011, Enduring POAs (EPOAs) that have been made in some jurisdictions outside of BC, including other Canadian provinces and territories, or in some other countries (e.g. United States, United Kingdom, Australia and New Zealand) may be recognized as legally valid in BC | As of September 1, 2011, Enduring POAs (EPOAs) that have been made in some jurisdictions outside of BC, including other Canadian provinces and territories, or in some other countries (e. g. United States, United Kingdom, Australia and New Zealand) may be recognized as legally valid in BC These new provisions are set out in s 38 of the PAA, and subject to the Power of Attorney Regulation [PAR]. | ||
Extra-jurisdictional EPOAs must be certified. Section 4(3) of the PAR currently requires that the EPOA from another jurisdiction must be | Extra-jurisdictional EPOAs must be certified. Section 4(3) of the PAR currently requires that the EPOA from another jurisdiction must be accompanied by a certificate, which is from a solicitor who is permitted to practice in the jurisdiction where the EPOA was made. The certificate must indicate that the EPOA meets the requirements set out in s 2(a) to (c) of the PAR. | ||
According to s 4(2)(a) to (c) of the PAR, a EPOA from outside BC will be deemed a valid EPOA in BC where it: | According to s 4(2)(a) to (c) of the PAR, a EPOA from outside BC will be deemed a valid EPOA in BC where it: | ||
*grants authority to an Attorney that comes into effect or continues to have effect while an adult is incapable of making decisions about his or her own affairs; | |||
*was made by a person who was, at the time of its making, ordinarily resides elsewhere in Canada or in the United States, the United Kingdom, Australia or New Zealand; and | *grants authority to an Attorney that comes into effect or continues to have effect while an adult is incapable of making decisions about his or her own affairs; | ||
*was made by a person who was, at the time of its making, ordinarily resides elsewhere in Canada or in the United States, the United Kingdom, Australia or New Zealand; and | |||
*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 | 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. | ||
== E. Acting as an Attorney == | == E. Acting as an Attorney == | ||
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=== 1. Duties === | === 1. Duties === | ||
The primary responsibility of an Attorney is to act in accordance with the Adult’s instructions, wishes, beliefs and values. The PAA | The primary responsibility of an Attorney is to act in accordance with the Adult’s instructions, wishes, beliefs and values. The PAA explicitly sets out a number of statutory duties and powers. According to s 19(1) of the PAA, an Attorney must: | ||
*act honestly and in good faith; | |||
*exercise the care, diligence and skill of a reasonably prudent person; | *act honestly and in good faith; | ||
*act within the authority given in the POA; and | *exercise the care, diligence and skill of a reasonably prudent person; | ||
*act within the authority given in the POA; and | |||
*keep prescribed records and produce these records for inspection and copying upon request. | *keep prescribed records and produce these records for inspection and copying upon request. | ||
An attorney must act in the Adult’s best interest, taking into account the Adult’s current wishes, known beliefs and values and explicit directions in the POA (s 19(2)). Where reasonable, an Attorney must give priority to meeting the personal care and health care needs of the adult, foster the independence of the Adult, and encourage the Adult’s involvement in any decision-making (s 19(3)). | |||
Concerning the Adult’s personal property and real property, an Attorney must keep the Adult’s property separate from his or her own property (s 19(4)). If the property is jointly owned by the Adult and the Attorney as joint tenants, or has been substituted for, or derived from, property owned as joint tenants, an Attorney must also: | |||
*only invest the adult’s property in accordance with the Trustee Act [TA]; | |||
*only invest the adult’s property in accordance with the | *not dispose of property that is subject to a specific testamentary gift in an Adult’s will; and | ||
* | |||
*keep the Adult’s personal effects at the disposal of the Adult. | *keep the Adult’s personal effects at the disposal of the Adult. | ||
If an EPOA explicitly says that an Attorney will be exempt from these provisions, then the Attorney is not legally obligated to fulfill these duties. | If an EPOA explicitly says that an Attorney will be exempt from these provisions, then the Attorney is not legally obligated to fulfill these duties. | ||
=== 2. Powers === | === 2. Powers === | ||
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*resignation of the Attorney(s). | *resignation of the Attorney(s). | ||
Adults who are making a POA should be informed of the procedure for ending (revoking) or changing the POA. Likewise, Adults should also know how an Attorney may resign. In many situations, Adults are unaware of their right to end a POA. As long as an Adult has capacity, he or she can revoke a POA. Details of how this is done appear below. | |||
=== 1. Revocation by an Adult === | === 1. Revocation by an Adult === | ||
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*register the revocation (or termination) at the Land Title Office (only applies where the POA deals with land transactions); and | *register the revocation (or termination) at the Land Title Office (only applies where the POA deals with land transactions); and | ||
*inform Nidus, if the POA was registered with Nidus. | *inform Nidus, if the POA was registered with Nidus. | ||
=== 2. Resignation of the Attorney(s) === | === 2. Resignation of the Attorney(s) === | ||
An Attorney can also formally resign at any time. An Attorney must give written notice to the Adult and any other Attorney(s). The resignation | An Attorney can also formally resign at any time. An Attorney must give written notice to the Adult and any other Attorney(s). The resignation of an Attorney is effective when written notice is given, or on a later date specified in the notice. | ||
An Attorney who loses the capacity to fulfill legal duties should resign. Likewise, if an Attorney is unable or unwilling to act on behalf of the Adult, according to the Adult’s instructions, wishes and values, then the Attorney should resign. | An Attorney who loses the capacity to fulfill legal duties should resign. Likewise, if an Attorney is unable or unwilling to act on behalf of the Adult, according to the Adult’s instructions, wishes and values, then the Attorney should resign. | ||
As of September 1, 2011, s 17(1) outlines that an Attorney who does not sign a POA is not obligated or authorized to act as an Attorney. It is possible to refuse becoming an Attorney by simply choosing not to sign the POA. Section 17(4) also states that an Attorney who does not sign is not required to provide any notice of any kind but ethically | As of September 1, 2011, s 17(1) outlines that an Attorney who does not sign a POA is not obligated or authorized to act as an Attorney. It is possible to refuse becoming an Attorney by simply choosing not to sign the POA. Section 17(4) also states that an Attorney who does not sign is not required to provide any notice of any kind but ethically the Attorney should let the adult know. If a person does sign the POA, and wishes to resign from acting as Attorney, then written notice must be provided to the adult, any other Attorneys and, if the adult in incapable, a spouse, near relative or, if known to the attorney, close friend of the adult. | ||
If an Adult who has capacity does not want the Attorney to act, then the Adult can revoke or change the POA. If an Adult no longer has capacity and others are concerned about the conduct of an Attorney, then you may wish to contact the Public Guardian and Trustee. Refer to [[Adult Abuse and Neglect (15:VIII)#2. Responding to Adult Abuse and Neglect — Public Guardian and Trustee | section VIII.B.2: Responding to Adult Abuse and Neglect — Public Guardian and Trustee]]. | If an Adult who has capacity does not want the Attorney to act, then the Adult can revoke or change the POA. If an Adult no longer has capacity and others are concerned about the conduct of an Attorney, then you may wish to contact the Public Guardian and Trustee. Refer to [[Adult Abuse and Neglect (15:VIII)#2. Responding to Adult Abuse and Neglect — Public Guardian and Trustee | section VIII.B.2: Responding to Adult Abuse and Neglect — Public Guardian and Trustee]]. | ||
=== 3. Duties After Termination === | === 3. Duties After Termination === | ||
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=== 1. Misuse and Abuse of a POA === | === 1. Misuse and Abuse of a POA === | ||
The misuse or abuse of a Power of Attorney is a criminal act and can be prosecuted under s 331 (Theft by person holding Power of Attorney), s | The misuse or abuse of a Power of Attorney is a criminal act and can be prosecuted under s 331 (Theft by person holding Power of Attorney), s 332 (Misappropriation of money held under direction), s 215 (Failure to provide necessaries of life), or s 380 (Fraud) of the Criminal Code. | ||
If a student or client has concerns that a person may be abused or neglected, or is at risk of being abused or neglected, then in most instances the student should discuss these concerns with the client and provide him or her with access to appropriate support services (e. g. , the Seniors Abuse & Information Line at: 604-437-1940 or 1-866-437-1940). | |||
If a | If a crime is suspected, consult with the Supervising Lawyer about how and whether to make a report to the appropriate authority. Students need to remember their legal responsibility to maintain professional conduct and client confidentiality. If there is concern that the adult is not capable, it may also be appropriate to refer the concern to the Public Guardian and Trustee. For example, section 17 of the Public Guardian and Trustee Act allows the PGT to investigate potential abuse of POA relationships. Similar authority for the PGT to investigate abuse and neglect are provided by sections 34-36 of the Power of Attorney Act. | ||
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: | |||
*Senior’s First BC (Formerly known as BC Centre for Elder Advocacy and Support) http://seniorsfirstbc. ca | |||
*Canadian Centre for Elder Law: www. bcli. org/ccel | |||
*Public Guardian & Trustee: www. trustee. bc. ca | |||
* | *Vancouver Coastal Health: Resource: www. vchreact. ca | ||
* | *Advocacy Centre for the Elderly website: www. acelaw. ca | ||
:'''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. | ||