Enduring Power of Attorney
|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. Remember, an enduring power of attorney can be used when you are mentally incapable, while a general power of attorney cannot.
- 1 Why you should consider an enduring power of attorney
- 2 There are other tools you can use to plan for your future care
- 3 Preparing an enduring power of attorney
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.
“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?”
– Patrice, Surrey
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.
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:
- 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.
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.
The BC Government has an enduring power of attorney form available online on their 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.
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.
You can choose to register your enduring power of attorney (and other documents) with the Nidus Personal Planning Registry. You can share the documents with others (such as banks, your attorney, and other family members).
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.
|Power of Attorney © People's Law School is, except for the images, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|