Enduring Powers of Attorney
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kevin Smith in March 2017.|
With an enduring power of attorney, you can name another person to make financial and legal decisions for you, and the appointment continues—or “endures”—in the event you become mentally incapable. Special considerations apply for this type of power of attorney.
- 1 What an enduring power of attorney allows you to do
- 2 Requirements for an enduring power of attorney
- 3 Making an enduring power of attorney
What an enduring power of attorney allows you to do
With an enduring power of attorney, you can name someone of your choice 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 is it important to have an enduring power of attorney?
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.
"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."
– 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.
An enduring power of attorney covers financial and legal decisions
An enduring power of attorney covers financial and legal decisions. This might include paying bills, depositing or withdrawing money from your bank account, investing your money, insuring or selling your car, or selling your home.
Your attorney cannot make personal care or health care decisions for you, such as consenting to dental work or surgery for you. To appoint someone to make personal care or health care decisions on your behalf, you can make a representation agreement.
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.
Requirements for an enduring power of attorney
You must have the capacity to make an enduring power of attorney
"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—or understand what a power of attorney might involve. 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’."
– Sylvia, Lawyer, Kelowna
You may make an enduring power of attorney if you are 19 years of age or older, and are capable of understanding the nature and consequences of the power of attorney.
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.
Under the law, you will be considered incapable of making an enduring power of attorney if you cannot understand all six of these things:
- the property you have and its approximate value,
- the obligations you owe to your dependants,
- 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 (subject to any restrictions set out in the power of attorney),
- that the value of your business and property may decline if your attorney fails to manage them prudently,
- that your attorney might misuse their authority, and
- that you may, if capable, revoke the enduring power of attorney.
Someone who doesn’t have the legal capacity to make an enduring power of attorney may still be able to make a representation agreement. A person can make a “section 7 representation agreement” even if they cannot manage their routine financial affairs or look after their daily needs. This makes a section 7 representation agreement a very useful "last resort" document when someone has not made any planning documents and they are starting to lose their capacity.
Who you can name as your attorney
Most people making an enduring power of attorney name a spouse, family member or friend as their attorney.
As with a general power of attorney, the law has two restrictions on who you can name as an attorney under an enduring power of attorney. You cannot appoint:
- A caregiver who is paid to provide you with personal or health care services.
- An employee at a facility where you live if the facility provides personal or health care services.
These restrictions do not apply if the person providing the care is your child, parent or spouse.
Making an enduring power of attorney
Should you see a notary public or lawyer?
It is a good idea to go to a lawyer or notary public to make an enduring power of attorney. An enduring power of attorney is a very powerful legal document. A lawyer or notary can help you understand its risks and benefits. They can also suggest ways you can create your enduring power of attorney so that it will be both safe and effective. As well, they can help you understand what your attorney can and cannot do. For example, a lawyer or notary can help you with rules about the gifts, loans and donations an attorney can make on your behalf.
An enduring power of attorney usually takes effect immediately
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. To the extent reasonable, your attorney must foster your independence and encourage your involvement in any decision-making that affects you.
An enduring power of attorney can also take effect at a specified time you name in the document, such as when you become incapacitated. This is known as a springing power of attorney.
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