Difference between revisions of "Enduring Power of Attorney"

From Clicklaw Wikibooks
Jump to navigation Jump to search
 
(30 intermediate revisions by 2 users not shown)
Line 1: Line 1:
{{REVIEWEDPLS | reviewer = [[Kevin Smith]] |date= March 2017}}
{{REVIEWEDPLS | reviewer = [[Kevin Smith]] |date= March 2019}}
{{Power of Attorney TOC}}
{{Power of Attorney TOC}}
== What is an enduring power of attorney? ==
An '''enduring power of attorney''' allows you to appoint someone you trust to make financial and legal decisions for you in case you become mentally incapable. This doesn’t stop you from managing your own affairs as long as you’re capable of making your own decisions.
[[File:Powerofattorneytwowomen.png|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.shutterstock.com</span>]]
An enduring power of attorney can be used when you are mentally incapable, while a [[Preparing a Power of Attorney|general power of attorney]] cannot.
An '''enduring power of attorne'''y allows you to appoint someone to make financial and legal decisions for you in case you become mentally incapable because of age, accident or illness. An enduring power of attorney does not stop you from managing your own affairs as long as you are capable of making your own decisions.


The key difference between an enduring power of attorney and a general power of attorney has to do with when they are in effect. Only an enduring power of attorney can be in effect when you are mentally incapable.
== Why you should consider an enduring power of attorney ==
None of us know when illness or accident or cognitive impairment will strike. You may one day be in a position where you’re unable to handle your own financial affairs. In that case, someone may need to step in to continue managing them for you. Even day-to-day decisions about money can become difficult. It’s wise to consider in advance who you’d like to handle your financial decisions — big and small  — for you.


=== Why is it important to have an enduring power of attorney? ===
Nobody, not even your spouse, has the automatic right to step in and manage your legal and financial affairs. If you don’t put plans in place, the court may have to appoint someone to make decisions for you, or the Public Guardian and Trustee may step in. 


Suppose you become unable to make decisions because of an accident. If you have an enduring power of attorney, your attorney can make financial and legal decisions on your behalf. If not, the courts may have to decide. Nobody, not even a spouse, has legal authority over an adult’s financial or legal affairs.
{{PLSStorybox
| image = [[File:Power_of_Attorney_-_Patrice.png |link=]]
| text      = “Last year, I found my husband Dave lying on the kitchen floor. He’d had a stroke. It was so sudden. Dave was smart with our money. A lot of it was tied up in investments — in his name. I was shocked that the bank wouldn’t let me access his money. After all, I need the money to help to care ''for him''. They said I didn’t have authority — I’m his wife — isn’t that enough?” <br/>– Patrice, Surrey}}


{{PLSStorybox
{{PLSTipsbox
| image = [[File:Headshot_-_Power_of_Attorney_-_George_-_2017-03-16.jpg  |link=]]
| text = An enduring power of attorney can be limited to dealing with specific matters, such as managing a bank account. It can also be limited to a specific time period.  
| text     = "My wife Susan is the owner of our second car. If she becomes mentally incapable, I learned I wouldn't have the legal authority to sell the car. So she made an enduring power of attorney appointing me as her attorney. That gives me the legal authority to sell the car if Susan becomes mentally incapable." <br>- George, Nelson
}}
}}


By making an enduring power of attorney, you can appoint someone else to make decisions regarding your finances and property in case you become mentally incapable.
=== There are other tools you can use to plan for your future care ===
In BC, an enduring power of attorney is the most common document used to give another person the authority to handle your financial and legal affairs if you become mentally incapable. But there are other options you can put in place to plan for future incapacity.


=== What does an enduring power of attorney cover? ===
For in-depth discussion on planning for your future care and the planning options that are available to you, visit the People’s Law School website at [http://peopleslawschool.ca peopleslawschool.ca].


An enduring power of attorney covers financial and legal decisions. Your attorney cannot make health care or personal care decisions for you, such as consenting to surgery or dental work for you. To appoint someone to make health care or personal care decisions on your behalf, you can make a '''representation agreement'''.
== Preparing an enduring power 
of attorney ==
=== Who can prepare an enduring power of attorney ===
The law says you can make an enduring power of attorney if you’re at least 19 years of age and are '''mentally capable''' of understanding the nature and consequences of the power of attorney.


An enduring power of attorney may be limited to dealing with specific matters, such as managing a specific bank account. It may also be limited to a specific time period.
The law presumes you are capable unless you’ve demonstrated that you’re not. The way you communicate isn’t a factor in deciding whether you are capable.


== Making an enduring power of attorney ==
The ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-370/latest/rsbc-1996-c-370.html#sec12_smooth Power of Attorney Act]'' says you must understand the nature and consequences of 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 the enduring power of attorney while you are mentally capable.


=== Who can make an enduring power of attorney? ===
=== A notary public or lawyer can help ===
It’s a good idea to ask a lawyer or notary public to help you prepare your enduring power of attorney. You can talk with them about what an attorney can do. They can also help you with rules about the gifts, loans, and donations an attorney can make on your behalf.


You may make an enduring power of attorney if you are 19 years of age or older, and are capable of making decisions. The law presumes you are capable unless it is shown that you are not. The way you communicate is not a factor in deciding whether you are capable.
{{PLSTipsbox
 
| text = The BC government has an enduring power of attorney form available online on their [http://gov.bc.ca/incapacityplanning Incapacity Planning webpage]. You don’t have to use this form, but it will give you an idea of how to make a power of attorney.
The [http://canlii.ca/t/849l ''Power of Attorney Act''] says you must understand the nature and consequences of all of these six factors, or you are considered incapable of making an enduring power of attorney:
}}


* the property you have and its approximate value,
=== Signing the enduring power of attorney ===
* the obligations you owe to your dependants,
'''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.
* that your attorney will be able to do on your behalf anything in respect of property that you could do if capable, except make a will,
* that the value of your business and property may decline if your attorney fails to manage them prudently,
* that the attorney might misuse their authority, and
* that you may, if capable, revoke the enduring power of attorney.


{{PLSStorybox
If the witness is a notary public or a lawyer, you only need one witness.
| text      = "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 may still be capable of making a ‘section 7 representation agreement’." <br>- Sylvia, Lawyer, Kelowna
}}


=== Who can you appoint as your attorney? ===
'''Your attorney must also sign''' the enduring power of attorney in front of two witnesses. Your attorney doesn’t have to sign at the same time as you.


As with a general power of attorney, most people making an enduring power of attorney appoint a spouse, family member or friend as their attorney.
The following people can’t witness a signature:
 
* the person you’re appointing as attorney  
The law has some restrictions on who can be appointed under an enduring power of attorney. You cannot appoint:
* a spouse, child, or parent of the attorney
* A caregiver who is paid to provide you with personal or health care services.
* anyone employed by the attorney, unless you are appointing a lawyer, notary public, the Public Guardian and Trustee, or a financial institution.  
* An employee at the facility where you live if the facility provides health or personal care services. This rule does not apply if the person providing the care is a spouse, a parent, or a child.


{{PLSTipsbox
{{PLSTipsbox
|width = 50%
| text = You can '''choose to register''' your enduring power of attorney (and other documents) with the [http://www.nidus.ca Nidus Personal Planning Registry]. You can share the documents with others (such as banks, your attorney, and other family members).  
| text = The BC Ministry of Attorney General has an [http://www2.gov.bc.ca/gov/content/health/managing-your-health/incapacity-planning 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 an enduring power of attorney.
}}
}}


=== Should you see a notary public or lawyer? ===
=== When an enduring power of attorney can be used ===
 
Enduring powers of attorney usually give the attorney authority to start acting right away. But you can continue to manage your financial and legal affairs as long as you are capable. You may want your attorney to help you with complicated matters only — or not at all. It’s your choice. You can tell your attorney you only want them to start acting when you really need help.
It is a good idea to go to a lawyer or notary public to make an enduring power of attorney. You can talk with a lawyer or notary public about what your attorney can do.
 
A notary public or lawyer can help you with rules about the gifts, loans and donations an attorney can make on your behalf.
 
=== What do you need to know about signing the documents?===
 
You must sign the enduring power of attorney and have the signing witnessed. You need only one witness if you use a notary public or a lawyer. Any attorney appointed after September 1, 2011 must also sign the enduring power of attorney document in front of witnesses before they can act. You and your attorney do not have to sign at the same time.
 
=== When does an enduring power of attorney take effect? ===
 
An enduring power of attorney usually takes effect as soon as you and your attorney sign the documents. You can continue to manage your financial and legal affairs for as long as you are capable. But your attorney can help you with any complicated matters. An enduring power of attorney can also take effect at a specified time you name in the document.


=== Is an enduring power of attorney made in one province okay in another? ===
To a reasonable extent, your attorney must foster your independence and encourage your involvement in any decision-making that affects you.


The [http://canlii.ca/t/849l ''Power of Attorney Act''] and the [http://canlii.ca/t/8p5w Regulation] under the Act have some provisions relating to enduring powers of attorney made outside British Columbia. You should ask a lawyer or notary how those provisions affect the enduring power of attorney in your situation.


{{Power of Attorney Navbox}}
{{Power of Attorney Navbox}}

Latest revision as of 19:42, 25 March 2019

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kevin Smith in March 2019.

An enduring power of attorney allows you to appoint someone you trust to make financial and legal decisions for you in case you become mentally incapable. This doesn’t stop you from managing your own affairs as long as you’re capable of making your own decisions. An enduring power of attorney can be used when you are mentally incapable, while a general power of attorney cannot.

Why you should consider an enduring power of attorney

None of us know when illness or accident or cognitive impairment will strike. You may one day be in a position where you’re unable to handle your own financial affairs. In that case, someone may need to step in to continue managing them for you. Even day-to-day decisions about money can become difficult. It’s wise to consider in advance who you’d like to handle your financial decisions — big and small — for you.

Nobody, not even your spouse, has the automatic right to step in and manage your legal and financial affairs. If you don’t put plans in place, the court may have to appoint someone to make decisions for you, or the Public Guardian and Trustee may step in.

There are other tools you can use to plan for your future care

In BC, an enduring power of attorney is the most common document used to give another person the authority to handle your financial and legal affairs if you become mentally incapable. But there are other options you can put in place to plan for future incapacity.

For in-depth discussion on planning for your future care and the planning options that are available to you, visit the People’s Law School website at peopleslawschool.ca.

Preparing an enduring power 
of attorney

Who can prepare an enduring power of attorney

The law says you can make an enduring power of attorney if you’re at least 19 years of age and are mentally capable of understanding the nature and consequences of the power of attorney.

The law presumes you are capable unless you’ve demonstrated that you’re not. The way you communicate isn’t a factor in deciding whether you are capable.

The Power of Attorney Act says you must understand the nature and consequences of all of the following six factors to be capable of making an enduring power of attorney:

  1. The obligations you owe to your dependants (such as children).
  2. The property you own and its approximate value.
  3. That your property may decrease in value if your attorney doesn’t manage it carefully.
  4. That your attorney will be able to do anything with your property that you could do if you were capable, except make a will.
  5. That your attorney might misuse their authority.
  6. That you can revoke the enduring power of attorney while you are mentally capable.

A notary public or lawyer can help

It’s a good idea to ask a lawyer or notary public to help you prepare your enduring power of attorney. You can talk with them about what an attorney can do. They can also help you with rules about the gifts, loans, and donations an attorney can make on your behalf.

Signing the enduring power of attorney

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.

If the witness is a notary public or a lawyer, you only need one witness.

Your attorney must also sign the enduring power of attorney in front of two witnesses. Your attorney doesn’t have to sign at the same time as you.

The following people can’t witness a signature:

  • the person you’re appointing as attorney
  • a spouse, child, or parent of the attorney
  • anyone employed by the attorney, unless you are appointing a lawyer, notary public, the Public Guardian and Trustee, or a financial institution.

When an enduring power of attorney can be used

Enduring powers of attorney usually give the attorney authority to start acting right away. But you can continue to manage your financial and legal affairs as long as you are capable. You may want your attorney to help you with complicated matters only — or not at all. It’s your choice. You can tell your attorney you only want them to start acting when you really need help.

To a reasonable extent, your attorney must foster your independence and encourage your involvement in any decision-making that affects you.



Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Power of Attorney © People's Law School is, except for the images, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence.