Power of Attorney Questions & Answers
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kevin Smith in January 2018.|
- 1 What is a power of attorney?
- 2 On what matters does the attorney have authority?
- 3 Can Martina still manage her own affairs after signing a power of attorney?
- 4 Can a power of attorney be changed or revoked?
- 5 What if you think the change was the result of fraud or abuse?
- 6 When do your responsibilities as attorney end?
- 7 What happens if you can no longer serve as attorney?
What is a power of attorney?
A power of attorney is a legal document. There are several types of power of attorney. With an enduring power of attorney, your friend Martina can give you the legal authority to take care of her money and property. That authority will continue if Martina becomes incapable and can’t make her own decisions.
Under the power of attorney, Martina is called the adult or principal.
You are called the attorney or agent.
A special type of power of attorney can come into effect when something happens to trigger it. This is called a springing power of attorney. Martina can appoint you to act on her behalf if the triggering event happens. The triggering event can be if Martina becomes mentally incapable. For example, the appointment can come into effect “when two physicians have determined that I am no longer capable of managing my affairs”. Such a springing power of attorney is not active until Martina is incapable.
For more on the types of power of attorney, see the People's Law School publication Power of Attorney.
A power of attorney covers financial and legal matters. These might include depositing or withdrawing money from Martina’s bank account, paying her bills or investing her money. They might include insuring or selling her car, or selling her home.
A power of attorney does not cover health care or personal care matters, such as whether Martina will undergo a medical procedure, where she lives, or who her visitors are.
For health care and personal care decisions, Martina could make a representation agreement to name someone (a “representative”) to make decisions for her if she can no longer manage on her own. There is a type of representation agreement that covers “routine” financial affairs and most legal matters, in addition to personal care and health care decisions. This guide doesn’t cover representation agreements. If you want more information about this option for personal planning, see the Nidus Personal Planning Resource Centre website at www.nidus.ca.
Can Martina still manage her own affairs after signing a power of attorney?
Yes, Martina can still manage her own money and property as long as she is able to make decisions.
Having a power of attorney does not remove Martina’s decision-making rights. Decision-making is not given away; it is shared between Martina and you whenever possible. You cannot override a decision made by Martina while she is capable.
Can a power of attorney be changed or revoked?
Yes, Martina can take away (or revoke) your authority to act as her attorney at any time, as long as she is still able to make decisions.
If Martina does take away your authority as her attorney, you must stop making decisions for her. Martina should tell any people or businesses you dealt with that you are no longer her attorney. Further information about revoking an enduring power of attorney is available from Nidus.
What if you think the change was the result of fraud or abuse?
You may think Martina did not understand her decision to remove you as her attorney. You may worry that she is being abused or exploited by someone else. If so, talk to a trusted family member, a lawyer, or an official from the Public Guardian and Trustee’s office.
You can make a report to the Public Guardian and Trustee if you believe that:
- an adult was incapable of revoking an enduring power of attorney, or
- fraud, undue pressure or some other form of abuse was used to cause an adult to revoke an enduring power of attorney.
You can make a report to the Public Guardian and Trustee by completing and filing a referral form.
If you have concerns that Martina may be the victim of abuse, you can call the Seniors Abuse and Information Line. They can offer advice, support and possibly legal representation. See the “Where to Get Help” section for contact details.
You can also ask an agency designated under the law in BC to investigate her situation. The provincial health authorities are designated agencies. The agency will investigate and offer support to Martina or take steps to protect her.
When do your responsibilities as attorney end?
Your authority as attorney ends in any circumstances set out in the power of attorney document.
If Martina revokes your authority to act as her attorney, your responsibilities end.
If a court names someone as Martina’s “committee” because she is incapable and requires assistance, your authority as attorney ends.
If the Public Guardian and Trustee is named as Martina’s “statutory property guardian”, your authority as attorney is suspended. The Public Guardian and Trustee will determine whether they should take over and end the power of attorney, or whether you should continue to act.
As well, your authority as Martina’s attorney ends when she dies. Any executor under a will would then take over. If there is no will, a court can appoint someone to administer her estate.
If you are Martina’s spouse, your authority to act as her attorney ends if your marriage or marriage-like relationship ends. The exception is if the enduring power of attorney document says otherwise.
Your authority as attorney also comes to an end in any of these situations:
- you become incapable
- you are bankrupt
- you are convicted of a crime in which Martina is a victim
- you die
When your responsibilities as attorney end, promptly notify any bank and other businesses you dealt with as attorney. Even if it is easy to continue some tasks—such as paying the adult’s outstanding bills—you should not do so. You will no longer have the authority to act on the adult’s behalf.
What happens if you can no longer serve as attorney?
If you can not continue acting as Martina’s attorney and she cannot name someone else to act for her, tell a trusted family member or the Public Guardian and Trustee’s office. If you cannot act as her attorney, she will need someone else to help her.
|Managing Someone Else's Money © People's Law School is, except for the images, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence.|