Difference between revisions of "Powers of Attorney and Representation Agreements"

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{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = [https://www.mclellanherbert.com/About/Hugh-S-Mclellan.shtml Hugh McLellan], McLellan Herbert and [http://www.nidus.ca/?page_id=2337 Joanne Taylor], Nidus Personal Planning Resource Centre and Registr|date= October 2018}} {{Dial-A-Law TOC|expanded = wills}}
One day, you may need someone to help you make decisions concerning your health care, legal affairs, or finances. A representation agreement and power of attorney can help you prepare for this possibility.


{{Dial-A-Law TOC|expanded = wills}}
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This script discusses powers of attorney, enduring powers of attorney and representation agreements, starting with powers of attorney.
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| text      = '''Alert!''' Are you preparing a power of attorney or representation agreement during coronavirus? There is currently a ministerial order in place ''temporarily'' allowing for the remote signing and witnessing of these documents. For more on what the requirements of remote witnessing are, see our information on [https://www.peopleslawschool.ca/everyday-legal-problems/health/coronavirus/coronavirus-your-legal-questions-answered#wills preparing planning documents during coronavirus].
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==What is a power of attorney?==
==Power of attorney==
A power of attorney is a document that appoints another person, called an “attorney,” to deal with your business and property and to make financial and legal decisions for you.


==BC has a new ''Power of Attorney Act''==
===With a power of attorney, you can appoint someone to manage your legal and financial affairs===
A new ''Power of Attorney Act'' came into effect in BC on September 1, 2011. It brought in many new changes relating to “enduring powers of attorney” (discussed later in this script). Powers of attorney signed before September 1, 2011 will generally still be valid. But since the new ''Power of Attorney Act'' brought in many changes, it’s a good idea to have a lawyer review your power(s) of attorney to ensure they are still valid and will do what you need them to do. Any powers of attorney signed on or after September 1, 2011 must follow all the new laws.
A '''power of attorney''' is a legal document you can use to appoint someone to make financial and legal decisions for you. The person you appoint is called an '''attorney'''.


==A power of attorney can be very specific==
Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-370/latest/rsbc-1996-c-370.html ''Power of Attorney Act''], you must be at least 19 years old to appoint an attorney and you must also be mentally capable. Generally, you are considered mentally capable of signing a document if you understand the nature and effect of the document when you sign it. The law presumes you are capable unless it’s shown you’re not.
For example, you may give your daughter a power of attorney just to cash your old age security pension cheques for you. In fact, you can get power of attorney forms for cashing these cheques at your local federal Service Canada office. Your bank can also give you a form if you need a power of attorney for a specific bank account.


==A power of attorney can also be very general==
A power of attorney that was signed before the law was updated (on September 1, 2011) will generally still be valid. It’s still a good idea to have a lawyer review a power of attorney made before this date.
If you wish, you can give your attorney very wide powers to deal with all of your assets.


==There are specific rules for powers of attorney dealing with real estate==
===There are different types of powers of attorney===
The ''Land Title Act'' requires the attorney to do certain things and follow certain procedures, and there are certain rules that apply. For example, a power of attorney dealing with real estate is only valid for three years from the date of signing, unless otherwise specified, or unless it is an enduring power of attorney as described in the ''Power of Attorney Act'', which has been filed in the Land Title registry in accordance with the ''Land Title Act''. You can get a copy of the ''Land Title Act'' at your local library or find it on the government’s legislation website at [http://www.bclaws.ca www.bclaws.ca]. Because real estate involves large amounts of money, you should consult a lawyer for real estate transactions rather than trying to do it yourself.
A '''general power of attorney''' ends automatically if you become mentally incapable or die. An '''enduring power of attorney''' continues — or endures — if you become mentally incapable.


==Who should you appoint as your attorney?==
You can give your attorney broad powers or you can place limits on the power you give them. Many people use a '''limited power of attorney''' when they can’t look after their own affairs because they’re travelling or injured. For example, if you’re going out of the country for a while and you want someone to deal with your bank accounts, you can prepare a limited power of attorney.
Consider carefully who to appoint as your attorney and the powers you want to give. You cannot appoint anyone who is paid to provide you with personal or health care or who works at a facility through which you receive personal or health care, unless that person is your child, parent or spouse. It’s important that you trust the person’s honesty and judgment. If you have no family member or friend that you can or want to appoint, you can appoint a respected professional such as your lawyer, accountant or trust company. As a power of attorney gives your attorney very broad power, it can cause you a lot of harm if misused.


==Can you appoint more than one attorney?==
===A power of attorney is different from a will===
You can appoint more than one person as your attorney, either in the same document or in different documents. If you appoint more than one attorney in the same document, the document should specify how the attorneys must act (for example, must act unanimously or by majority decision). If one or more attorney(s) is unable or unwilling to act, the remaining attorney(s) can continue to act. If you don’t want the remaining attorney(s) to be able to continue to act, you should specifically state this in the document(s).
A power of attorney is a way to plan for managing your affairs during your lifetime. A will provides for the distribution of the things you own after your death. To learn more about preparing a will, [[Preparing a Will and Estate Planning|see our information on preparing a will and estate planning]].


==Does the person you appoint have to act as your attorney?==
===Choosing your attorney===
No. Merely granting a power of attorney to someone (and even delivering the written document to them) doesn’t mean that this person has to act as your attorney if they don’t want to. The attorney doesn’t have to take any specific steps to say “no,” or to later decline to act if they no longer wish to be the attorney.
Most people choose a family member or friend to be their attorney. You could also ask a professional, such as your lawyer or accountant or a trust company to be your attorney. The most important thing is to choose someone you trust — you’re giving your attorney a lot of power.


==How do you end a power of attorney?==
If you appoint someone who is not yet 19, they can’t act as attorney until they become an adult.
The most effective way to terminate a power of attorney is to give your attorney a written notice saying that their power has ended, and preferably also to destroy all originals or duplicates of the document (to prevent misuse by the terminated attorney). To cancel or revoke a power of attorney dealing with land, you must file a document called a “Notice of Revocation” in the Land Title Office where the land is registered. The court can also terminate a power of attorney – this might happen if your attorney abuses their power. It’s also possible to put an end-date, or include circumstances in which the power of attorney will end, in the document itself.


==A power of attorney automatically ends in certain circumstances==
===Ending a power of attorney===
It automatically ends when you die or if you become bankrupt. It also ends if you become mentally incompetent, unless you say that the power should continue, and then you’ve made an “enduring power of attorney.
A power of attorney ends automatically when you die. A general power of attorney ends if you become mentally incapable.


==What is an enduring power of attorney?==
You can end a power of attorney by giving your attorney a written notice saying that their power has ended. This is called a notice of revocation. You should destroy all originals and duplicates of the document to prevent misuse by the attorney. Give the '''notice of revocation''' to any financial institutions or other third parties where your attorney may have acted for you.
An enduring power of attorney allows your attorney to make the necessary financial and legal decisions for you if you become mentally incapable because of age, accident or illness. To make a valid enduring power of attorney, the document must specify whether the attorney can exercise authority only while you are capable or only while you are incapable (or both). The document must also state that your attorney's authority will continue even if you’re no longer able to make decisions for yourself.


==There are different rules for enduring powers of attorney than for non-enduring ones==
You can also put an end-date in the document, or explain circumstances when it will end — for example, when you return home from a trip.
For example, for enduring powers of attorney, if you appoint more than one attorney in different documents, the appointed attorneys must act together unanimously, unless the documents describe when the attorneys don’t have to act unanimously or set out how a conflict between the attorneys is to be resolved.


Also, if your attorney has signed the enduring power of attorney and the attorney no longer wishes to be the attorney, the attorney must give written notice of their resignation to you and any other attorneys named in the document. If you are mentally incapable at that time, the attorney must also give written notice of their resignation to your spouse, near relative or close friend.
To end a power of attorney dealing with land, you must file the notice of revocation with the Land Title Office where the land is registered.


==How do you end an enduring power of attorney?==
==Enduring power of attorney==
To terminate or change an enduring power of attorney, you must give written notice of the termination or change to your attorney(s). It’s also important to give written notice of the termination to any financial institutions or other third parties where your attorney may have previously used the enduring power of attorney to act on your behalf.


Also, the ''Power of Attorney Act'' sets out additional circumstances under which an enduring power of attorney automatically ends, such as:
===With an '''enduring power of attorney''', you can plan for your future care===
An enduring power of attorney is a document you can use to appoint another person to make financial and legal decisions for you. It continues — or endures — if you become mentally incapable. The person you appoint is called your '''attorney'''. In contrast, a '''general power of attorney''' ends if the adult becomes mentally incapable.


*if the attorney becomes bankrupt
An enduring power of attorney must say that the authority continues despite the adult’s incapability. It must also say whether the attorney may exercise authority while the adult is capable, or only while the adult is incapable.
*if the attorney is your spouse (either married or common-law) and your marriage or marriage-like relationship ends, unless the document specifically says that the power of attorney will continue to be in effect if your marriage or marriage-like relationship ends
*if the attorney is a corporation and the corporation is dissolved or winded up
*if the attorney is convicted of an offence described in the ''Power of Attorney Act'' or an offence where you were the victim


==There are specific new rules for signing an enduring power of attorney==
In order to make a power of attorney, you must be an adult (at least 19 years old) and you must be mentally capable. [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-370/116164/rsbc-1996-c-370.html#sec11 Section 11 of the ''Power of Attorney Act''] says that adults are presumed to be capable of making decisions about their financial affairs and understanding the nature and consequences of making, changing, or revoking an enduring power of attorney (unless it’s shown otherwise).
An enduring power of attorney must be signed and dated by you in front of two adult witnesses at the same time (only one witness is needed if the witness is a lawyer or notary public). Neither your appointed attorney nor the spouse, child, parent or an employee/agent of the appointed attorney can act as a witness.


Also, before an appointed attorney can start to exercise any authority granted to them under an enduring power of attorney, the appointed person must sign and date the document in front of two witnesses (only one is required if the witness is a lawyer or notary public). The attorney doesn’t need to sign in front of you or any other appointed attorneys (if more than one attorney is appointed). But the same witness rules for your signing apply to the attorney's signing.
It also explains that an adult is incapable if they cannot understand the six items listed in section 11.


==When is an enduring power of attorney useful?==
An enduring power of attorney signed before the law was updated on September 1, 2011 will generally still be valid. It’s still a good idea to have a lawyer review it.
An enduring power of attorney may help avoid having the court appoint a “committee” of one or more people to look after your legal and financial affairs in the event that you become mentally incompetent. A committee appointment is much more expensive than making an enduring power of attorney. See script [[Committeeship (Script 426)|426]] on “Committeeship” for more information on this.


==What are the duties of an attorney under an enduring power of attorney?==
===Why you should consider an enduring power of attorney===
Before a person agrees to act as an attorney under an enduring power of attorney, the person should be aware of the duties and obligations that they will have as an attorney. All of the duties and obligations are described in the ''Power of Attorney Act''. These include the duty:
With an enduring power of attorney, you decide who will look after your legal and financial affairs if you become incapable. Without an enduring power of attorney, if you become incapable, someone may have to apply to BC Supreme Court to be appointed your committee of estate. A '''committee of estate''' has the authority to look after your legal and financial affairs. Usually a spouse or other family member applies. To learn more about this process, [[Committeeship|see our information on committeeship]].


*to act honestly and in good faith
You have more control if you make an enduring power of attorney. And it costs much less than going to court to appoint a committee.
*to act in your best interests, taking into account your current wishes, known beliefs and values and any directions that are set out in the document
*to not dispose of any property that the attorney knows is specifically gifted in your Will
*to keep your assets separate from the attorney's assets
*to keep proper records, including creating and maintaining a list of your property and liabilities


==What decisions can be delegated with a power of attorney?==
===Choosing your attorney under an enduring power of attorney===
A power of attorney is used to delegate financial and most legal decisions. This is true for both a power of attorney and an enduring power of attorney. But your attorney cannot make medical or health care decisions for you, such as consenting to surgery or dental work for you. For these decisions, you need to make what’s called a “representation agreement.”  In the event that there is a conflict between your enduring power of attorney and your representation agreement, the provisions of your enduring power of attorney will prevail.
You should appoint someone you trust because you’re giving them a lot of power. Many people choose their spouse, family member, or friend. You can also ask a professional such as your lawyer or accountant, or a trust company. You can’t appoint anyone who is paid to give you personal or health care services or who works at a facility where you receive personal or health care services, unless that person is your child, parent, or spouse.


==What is a representation agreement?==
A person can refuse to act as your attorney. Talk to the person you’re thinking of appointing and make sure they’re up for the job.
The ''Representation Agreement Act'' allows you to appoint someone as your legal representative to handle your financial, legal, personal care and health care decisions, if you’re unable to make them on your own. You cannot appoint any person who is paid to provide you with personal or health care or who is an employee of a facility through which you receive personal or health care, unless that person is your child, parent or spouse. The document is called a representation agreement and it creates a contract between you and your representative.


==There are new changes to the ''Representation Agreement Act''==
===You can appoint more than one attorney===
Changes to BC’s ''Representation Agreement Act'' came into effect on September 1, 2011. Representation agreements signed before then will generally still be valid. But any representation agreements signed on or after September 1, 2011 must follow all the new laws.
You can appoint more than one attorney, with different, or the same, authority. If they have the same authority, they must act unanimously unless:


==Your representative has certain duties they must follow==
* the document says they don’t need to,
Before a person agrees to act as a representative, that person should review and be aware of the duties and obligations that they will have as a representative. For example, your representative must consult with you, as much as is reasonable, to determine your wishes. Some of the other duties of representatives include the duty:
* the document explains how they must resolve conflicts, or
* one of the attorneys is an alternate, and you explain when they may act.


*to act honestly and in good faith
===Signing an enduring power of attorney===
*to take into account your current wishes, and if you’re unable to express your wishes at that time, to take into account any wishes or instructions you may have given while you were capable of doing so
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-370/116164/rsbc-1996-c-370.html#sec16 Under section 16], '''you must sign''' the enduring power of attorney in front of one witness if they are a BC lawyer or notary public. Otherwise you need two adult witnesses. The witnesses must sign it in front of you and each other.
*to act within the authority granted by the representation agreement
*to keep your assets separate from the representative's assets
*to keep proper records including creating and maintaining a list of your property and liabilities


==The agreement should name a monitor==
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-370/116164/rsbc-1996-c-370.html#sec17 Under section 17], '''the attorney must sign''' the enduring power of attorney in front of one adult witness if they are a BC lawyer or BC notary public. Otherwise the attorney needs two adult witnesses.
Generally speaking, unless your representative is your spouse, the representation agreement must name another person as a “monitor” to help ensure that the representative lives up to their duties, or the agreement must state that a monitor isn’t required.


Are there different types of representation agreements?
Certain people cannot be witnesses. They include your attorney, and the spouse, child, parent, employee, and agent of the attorney.
There are two types:
*Section 7 limited agreement – to cover straightforward, everyday decisions
*Section 9 general agreement – to deal with complex personal care and health care matters


A Section 9 agreement is needed for your representative to make such decisions as refusing life support if you become terminally ill.
===The attorney has certain duties under an enduring power of attorney===
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-370/116164/rsbc-1996-c-370.html#sec19 Section 19 sets out the duties of an attorney under an enduring power of attorney]. They include the duty to:


==There are strict rules for signing a representation agreement==
* act honestly and in good faith
Two witnesses are needed when you sign a representation agreement (unless one of the witnesses is a lawyer, in which case you only need the signature of that lawyer witness). There are also certain restrictions on who can be a witness.
* exercise the care, diligence, and skill of a reasonably prudent person
* act within the authority given in the enduring power of attorney
* keep proper records for inspection and copying
* act in the adult’s best interests, taking into account the adult’s current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney
* give priority when managing the adult’s financial affairs to meet the personal care and health care needs of the adult
* invest the adult’s property only under the ''Trustee Act'', unless otherwise stated
* foster the independence of the adult and encourage the adult’s involvement in any decision-making that affects the adult
* not dispose of any property that the attorney knows is specifically gifted in your will, unless it’s necessary to comply with their duties
* keep the adult’s assets separate from the attorney’s assets


==Do you need a lawyer to make a representation agreement?==
===Ending an enduring power of attorney===
The law doesn’t require you to consult a lawyer to make a representation agreement. But you should actually see a lawyer if you want to make an agreement. A lawyer can help you to understand the wide range of issues that arise with a representation agreement.
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-370/116164/rsbc-1996-c-370.html#sec28 Under section 28], you can '''revoke''', that is cancel, an enduring power of attorney unless you’re incapable. When you make the document, you can add other ways to revoke it.


==Can you register these documents somewhere?==
The authority of an attorney is suspended or ends in several cases [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-370/116164/rsbc-1996-c-370.html#sec29 listed in section 29 of the Act], including if the attorney:
At the Nidus Personal Planning Resource Centre & Registry, you can register both enduring powers of attorney and representation agreements. Hospitals, banks and government services can search there to find out who your attorney or representative is if they need to. See [http://www.nidus.ca www.nidus.ca].


==Summary==
* becomes bankrupt
A power of attorney is a document that allows you to give another person, called the attorney, the authority to act for you in financial and legal matters. The power can be as specific or as general as you wish. But unless you use an enduring power of attorney, it will automatically end if you become mentally incompetent. A representation agreement, on the other hand, can cover personal care and health care decisions, as well as certain financial and legal decisions, if you’re unable to make them on your own.
* is your spouse and your marriage or marriage-like relationship ends (unless the document says that the authority continues regardless of whether your marriage or marriage-like relationship ends)
* is a corporation and the corporation dissolves, winds up, or ceases to carry on business
* is convicted of an offence under the ''Power of Attorney Act'' or an offence where you were the victim


==Where can you find more information?==
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-370/116164/rsbc-1996-c-370.html#sec30 Under section 30], an enduring power of attorney is suspended or ends in several cases, including:
*The Public Guardian and Trustee of British Columbia has detailed information on powers of attorney, representation agreements and court orders appointing a committee to look after the affairs of a person who is mentally incapable. Their phone number is 604.660.4444 in Vancouver and their website is [http://www.trustee.bc.ca www.trustee.bc.ca].
*The Nidus Personal Planning Resource Centre & Registry provides detailed information on representation agreements. Their phone number is 604.408.7414, and their website is [http://www.nidus.ca www.nidus.ca].
*See the provincial government’s website on incapacity planning and the forms that can be used at [http://www.ag.gov.bc.ca/incapacity-planning www.ag.gov.bc.ca/incapacity-planning].
*Refer to script [[Committeeship (Script 426)|426]] on “Committeeship”.


when you die
if you have a '''committee''' (when someone is appointed by the court to manage your legal and financial affairs)
if a BC court declares you to be incapable
if a BC court terminates the power of power of attorney


[updated October 2013]
To cancel a power of attorney dealing with land, you must file a document called a “notice of revocation” with the Land Title Office where the land is registered.


==Representation agreement==


----
===A representation agreement is another tool you can use to plan for your future care===
----
A '''representation agreement''' is a document you can use to appoint someone, called a '''representative''', to help you make, or to make, personal and health care decisions if you cannot make these decisions on your own. A representation agreement cannot authorize medical assistance in dying.


[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec7 An agreement under section 7 of the ''Representation Agreement Act''] can allow a representative to deal with routine management of financial affairs.


You need to be at least 19 years old to make a representation agreement.
Representation agreements signed before the law was updated (on September 1, 2011) will generally still be valid. Any representation agreements signed on or after September 1, 2011 must follow the updated law.
===There are two types of representation agreements===
[http://canlii.ca/t/52fhn#sec7 Section 7] deals with standard provisions for '''routine management''' of financial affairs and legal affairs, personal care, and minor and major health care. [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec8 Under section 8], an adult can make a representation agreement under section 7 even if they cannot make a contract or make decisions independently.
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec9 Section 9] deals with non-standard representation agreements for all '''personal care and health care matters'''. [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec10 Section 10] says that to make this type of agreement, you must understand the nature and consequences of the document when you make it. Under this type of agreement, you can give general or specific powers. A representative with general powers can give or refuse consent to health care, including health care necessary to preserve life.
===Why consider a representation agreement===
With a representation agreement, you have a say in who will make personal and health care decisions for you if you become incapable. You may be able to reduce the burden on your family and friends. And you can avoid the government being involved in your personal and health care decisions.
If you do not have a representative, and someone needs to make a health care decision for you, a '''temporary substitute decision-maker''' may need to be appointed. Our information on [[Adults and Consent to Health Care|adults and consent to health care]] explains temporary substitute decision-makers and '''advance directives''', which are written instructions about health care wishes.
===Choosing a representative===
A '''representative''' is usually a spouse or other family member or friend. [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec5 Under section 5], you can appoint any adult except someone who is:
* paid to give you personal or health care services, or
* an employee of a facility where you live and receive personal or health care services
These exceptions don’t apply if your representative is your child, parent or spouse. You cannot appoint a trust company to be your representative for personal and health care decisions.
The person you appoint can refuse to act as your representative. Talk to anyone you’re thinking of appointing to make sure they’re up for the job.
===You can choose more than one representative===
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec6 Under section 6], you can appoint more than one representative and give them the same or different authority. If they have the same authority, they have to act unanimously unless the agreement says otherwise.
You can also appoint an alternate representative. This is someone who can step in if your first representative is no longer willing or able to act for you. If you appoint an alternate representative, you have to say when they can act in place of the representative.
===Signing a representation agreement===
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec13 Under section 13], you must sign the representation agreement in front of one adult witness if they are a lawyer or notary public. Otherwise you need two adult witnesses. Each representative must sign the document.
Certain people cannot be witnesses. They include your representative (and alternate representative) and the spouse, child, parent, employee, and agent of your representative (and alternate representative).
===A representative has certain duties===
Your representative must consult with you, as much as is reasonable, to determine your wishes. Some of the other [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec16 duties of representatives under section 16] include the duty to:
* act honestly and in good faith
* exercise the care, diligence, and skill of a reasonably prudent person
* act within the authority granted by the representation agreement
* keep your assets separate from the representative’s assets
* keep proper records including creating and maintaining a list of your property and liabilities
When helping you to make decisions or making decisions for you, a representative must do the following, in the following order:
# determine and comply with your current wishes
# comply with the wishes you expressed when you were capable
# act based on your known beliefs and values if your wishes are not known
# act in your best interests if your beliefs and values are not known
===Sometimes a monitor is required===
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec12 Under section 12], if your representation agreement deals with routine management of your financial affairs, you need an extra safeguard: you must name a '''monitor'''. You do not need a monitor if your representative is your spouse, the Public Guardian and Trustee, a trust company, or a credit union. You also don’t need a monitor if you name two or more representatives to deal with your financial affairs and require them to act unanimously.
===A representation agreement may conflict with an enduring power of attorney===
If:
* your representation agreement includes routine management of financial affairs, and
* you also have an enduring power of attorney (explained above) dealing with your financial affairs, and
* the two documents conflict,
then the enduring power of attorney takes priority.
===Cancelling or changing a representation agreement===
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec27 Under section 27], to cancel a representation agreement, you have to give written notice to the representative and alternate representative and monitor.
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec28 Under section 28], the parts dealing with routine financial affairs are automatically cancelled if you or the representative become bankrupt or if the representative is convicted of an offence involving dishonesty, and in certain other cases.
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-405/116170/rsbc-1996-c-405.html#sec29 Under section 29], a representation agreement ends in certain cases, including if you or the representative die, if the representative becomes incapable, or if you are declared incapable by a BC court and the court does not allow the representation agreement to continue.
==Common questions==
===What decisions can an attorney make?===
An attorney can make most financial and legal decisions. You can choose to limit the attorney’s power.
An attorney cannot make personal care or health care decisions for you. For these decisions, you need a representation agreement.
===Can I limit my attorney’s powers?===
You can give your attorney very limited power. For example, you can give your daughter a power of attorney only to cash your pension cheques for you. Or you can give someone very broad power to deal with all your financial and legal affairs.
===What if I want my attorney to deal with my home or other real estate property?===
A power of attorney for real estate has to be filed with the Land Title Office. [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-250/144765/rsbc-1996-c-250.html#sec56_smooth Under Part 6 of the ''Land Title Act''], it is valid for only three years from the date of signing, unless it says otherwise, or unless it is an enduring power of attorney.
To cancel a power of attorney dealing with land, you must file a document called a “notice of revocation” in the Land Title Office where the land is registered.
===Do you need a lawyer to prepare these documents?===
No, but it is advisable to use a lawyer who specializes in this area of law because it’s complex.
===Can you register these documents somewhere?===
At the [https://www.nidus.ca/ Nidus Personal Planning Resource Centre & Registry], you can register enduring powers of attorney and representation agreements. Hospitals, banks, and government services can search there to find out who your attorney or representative is.
==Who can help==
===With more information===
The '''Nidus Personal Planning Resource Centre & Registry''' has detailed information on all aspects of enduring powers of attorney and representation agreements, including fact sheets, forms, and videos.
* [http://www.nidus.ca/ Visit website]
The '''Public Guardian and Trustee of British Columbia''' provides information on personal planning tools, including enduring powers of attorney and representation agreements.
* Call 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
* Call 1-800-663-7867 (toll-free)
* [https://www.trustee.bc.ca/Pages/default.aspx Visit website]
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Revision as of 04:32, 10 November 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Hugh McLellan, McLellan Herbert and Joanne Taylor, Nidus Personal Planning Resource Centre and Registr in October 2018.

One day, you may need someone to help you make decisions concerning your health care, legal affairs, or finances. A representation agreement and power of attorney can help you prepare for this possibility.

Power of attorney

With a power of attorney, you can appoint someone to manage your legal and financial affairs

A power of attorney is a legal document you can use to appoint someone to make financial and legal decisions for you. The person you appoint is called an attorney.

Under the Power of Attorney Act, you must be at least 19 years old to appoint an attorney and you must also be mentally capable. Generally, you are considered mentally capable of signing a document if you understand the nature and effect of the document when you sign it. The law presumes you are capable unless it’s shown you’re not.

A power of attorney that was signed before the law was updated (on September 1, 2011) will generally still be valid. It’s still a good idea to have a lawyer review a power of attorney made before this date.

There are different types of powers of attorney

A general power of attorney ends automatically if you become mentally incapable or die. An enduring power of attorney continues — or endures — if you become mentally incapable.

You can give your attorney broad powers or you can place limits on the power you give them. Many people use a limited power of attorney when they can’t look after their own affairs because they’re travelling or injured. For example, if you’re going out of the country for a while and you want someone to deal with your bank accounts, you can prepare a limited power of attorney.

A power of attorney is different from a will

A power of attorney is a way to plan for managing your affairs during your lifetime. A will provides for the distribution of the things you own after your death. To learn more about preparing a will, see our information on preparing a will and estate planning.

Choosing your attorney

Most people choose a family member or friend to be their attorney. You could also ask a professional, such as your lawyer or accountant or a trust company to be your attorney. The most important thing is to choose someone you trust — you’re giving your attorney a lot of power.

If you appoint someone who is not yet 19, they can’t act as attorney until they become an adult.

Ending a power of attorney

A power of attorney ends automatically when you die. A general power of attorney ends if you become mentally incapable.

You can end a power of attorney by giving your attorney a written notice saying that their power has ended. This is called a notice of revocation. You should destroy all originals and duplicates of the document to prevent misuse by the attorney. Give the notice of revocation to any financial institutions or other third parties where your attorney may have acted for you.

You can also put an end-date in the document, or explain circumstances when it will end — for example, when you return home from a trip.

To end a power of attorney dealing with land, you must file the notice of revocation with the Land Title Office where the land is registered.

Enduring power of attorney

With an enduring power of attorney, you can plan for your future care

An enduring power of attorney is a document you can use to appoint another person to make financial and legal decisions for you. It continues — or endures — if you become mentally incapable. The person you appoint is called your attorney. In contrast, a general power of attorney ends if the adult becomes mentally incapable.

An enduring power of attorney must say that the authority continues despite the adult’s incapability. It must also say whether the attorney may exercise authority while the adult is capable, or only while the adult is incapable.

In order to make a power of attorney, you must be an adult (at least 19 years old) and you must be mentally capable. Section 11 of the Power of Attorney Act says that adults are presumed to be capable of making decisions about their financial affairs and understanding the nature and consequences of making, changing, or revoking an enduring power of attorney (unless it’s shown otherwise).

It also explains that an adult is incapable if they cannot understand the six items listed in section 11.

An enduring power of attorney signed before the law was updated on September 1, 2011 will generally still be valid. It’s still a good idea to have a lawyer review it.

Why you should consider an enduring power of attorney

With an enduring power of attorney, you decide who will look after your legal and financial affairs if you become incapable. Without an enduring power of attorney, if you become incapable, someone may have to apply to BC Supreme Court to be appointed your committee of estate. A committee of estate has the authority to look after your legal and financial affairs. Usually a spouse or other family member applies. To learn more about this process, see our information on committeeship.

You have more control if you make an enduring power of attorney. And it costs much less than going to court to appoint a committee.

Choosing your attorney under an enduring power of attorney

You should appoint someone you trust because you’re giving them a lot of power. Many people choose their spouse, family member, or friend. You can also ask a professional such as your lawyer or accountant, or a trust company. You can’t appoint anyone who is paid to give you personal or health care services or who works at a facility where you receive personal or health care services, unless that person is your child, parent, or spouse.

A person can refuse to act as your attorney. Talk to the person you’re thinking of appointing and make sure they’re up for the job.

You can appoint more than one attorney

You can appoint more than one attorney, with different, or the same, authority. If they have the same authority, they must act unanimously unless:

  • the document says they don’t need to,
  • the document explains how they must resolve conflicts, or
  • one of the attorneys is an alternate, and you explain when they may act.

Signing an enduring power of attorney

Under section 16, you must sign the enduring power of attorney in front of one witness if they are a BC lawyer or notary public. Otherwise you need two adult witnesses. The witnesses must sign it in front of you and each other.

Under section 17, the attorney must sign the enduring power of attorney in front of one adult witness if they are a BC lawyer or BC notary public. Otherwise the attorney needs two adult witnesses.

Certain people cannot be witnesses. They include your attorney, and the spouse, child, parent, employee, and agent of the attorney.

The attorney has certain duties under an enduring power of attorney

Section 19 sets out the duties of an attorney under an enduring power of attorney. They include the duty to:

  • act honestly and in good faith
  • exercise the care, diligence, and skill of a reasonably prudent person
  • act within the authority given in the enduring power of attorney
  • keep proper records for inspection and copying
  • act in the adult’s best interests, taking into account the adult’s current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney
  • give priority when managing the adult’s financial affairs to meet the personal care and health care needs of the adult
  • invest the adult’s property only under the Trustee Act, unless otherwise stated
  • foster the independence of the adult and encourage the adult’s involvement in any decision-making that affects the adult
  • not dispose of any property that the attorney knows is specifically gifted in your will, unless it’s necessary to comply with their duties
  • keep the adult’s assets separate from the attorney’s assets

Ending an enduring power of attorney

Under section 28, you can revoke, that is cancel, an enduring power of attorney unless you’re incapable. When you make the document, you can add other ways to revoke it.

The authority of an attorney is suspended or ends in several cases listed in section 29 of the Act, including if the attorney:

  • becomes bankrupt
  • is your spouse and your marriage or marriage-like relationship ends (unless the document says that the authority continues regardless of whether your marriage or marriage-like relationship ends)
  • is a corporation and the corporation dissolves, winds up, or ceases to carry on business
  • is convicted of an offence under the Power of Attorney Act or an offence where you were the victim

Under section 30, an enduring power of attorney is suspended or ends in several cases, including:

when you die if you have a committee (when someone is appointed by the court to manage your legal and financial affairs) if a BC court declares you to be incapable if a BC court terminates the power of power of attorney

To cancel a power of attorney dealing with land, you must file a document called a “notice of revocation” with the Land Title Office where the land is registered.

Representation agreement

A representation agreement is another tool you can use to plan for your future care

A representation agreement is a document you can use to appoint someone, called a representative, to help you make, or to make, personal and health care decisions if you cannot make these decisions on your own. A representation agreement cannot authorize medical assistance in dying.

An agreement under section 7 of the Representation Agreement Act can allow a representative to deal with routine management of financial affairs.

You need to be at least 19 years old to make a representation agreement.

Representation agreements signed before the law was updated (on September 1, 2011) will generally still be valid. Any representation agreements signed on or after September 1, 2011 must follow the updated law.

There are two types of representation agreements

Section 7 deals with standard provisions for routine management of financial affairs and legal affairs, personal care, and minor and major health care. Under section 8, an adult can make a representation agreement under section 7 even if they cannot make a contract or make decisions independently.

Section 9 deals with non-standard representation agreements for all personal care and health care matters. Section 10 says that to make this type of agreement, you must understand the nature and consequences of the document when you make it. Under this type of agreement, you can give general or specific powers. A representative with general powers can give or refuse consent to health care, including health care necessary to preserve life.

Why consider a representation agreement

With a representation agreement, you have a say in who will make personal and health care decisions for you if you become incapable. You may be able to reduce the burden on your family and friends. And you can avoid the government being involved in your personal and health care decisions.

If you do not have a representative, and someone needs to make a health care decision for you, a temporary substitute decision-maker may need to be appointed. Our information on adults and consent to health care explains temporary substitute decision-makers and advance directives, which are written instructions about health care wishes.

Choosing a representative

A representative is usually a spouse or other family member or friend. Under section 5, you can appoint any adult except someone who is:

  • paid to give you personal or health care services, or
  • an employee of a facility where you live and receive personal or health care services

These exceptions don’t apply if your representative is your child, parent or spouse. You cannot appoint a trust company to be your representative for personal and health care decisions.

The person you appoint can refuse to act as your representative. Talk to anyone you’re thinking of appointing to make sure they’re up for the job.

You can choose more than one representative

Under section 6, you can appoint more than one representative and give them the same or different authority. If they have the same authority, they have to act unanimously unless the agreement says otherwise.

You can also appoint an alternate representative. This is someone who can step in if your first representative is no longer willing or able to act for you. If you appoint an alternate representative, you have to say when they can act in place of the representative.

Signing a representation agreement

Under section 13, you must sign the representation agreement in front of one adult witness if they are a lawyer or notary public. Otherwise you need two adult witnesses. Each representative must sign the document.

Certain people cannot be witnesses. They include your representative (and alternate representative) and the spouse, child, parent, employee, and agent of your representative (and alternate representative).

A representative has certain duties

Your representative must consult with you, as much as is reasonable, to determine your wishes. Some of the other duties of representatives under section 16 include the duty to:

  • act honestly and in good faith
  • exercise the care, diligence, and skill of a reasonably prudent person
  • act within the authority granted by the representation agreement
  • keep your assets separate from the representative’s assets
  • keep proper records including creating and maintaining a list of your property and liabilities

When helping you to make decisions or making decisions for you, a representative must do the following, in the following order:

  1. determine and comply with your current wishes
  2. comply with the wishes you expressed when you were capable
  3. act based on your known beliefs and values if your wishes are not known
  4. act in your best interests if your beliefs and values are not known

Sometimes a monitor is required

Under section 12, if your representation agreement deals with routine management of your financial affairs, you need an extra safeguard: you must name a monitor. You do not need a monitor if your representative is your spouse, the Public Guardian and Trustee, a trust company, or a credit union. You also don’t need a monitor if you name two or more representatives to deal with your financial affairs and require them to act unanimously.

A representation agreement may conflict with an enduring power of attorney

If:

  • your representation agreement includes routine management of financial affairs, and
  • you also have an enduring power of attorney (explained above) dealing with your financial affairs, and
  • the two documents conflict,

then the enduring power of attorney takes priority.

Cancelling or changing a representation agreement

Under section 27, to cancel a representation agreement, you have to give written notice to the representative and alternate representative and monitor.

Under section 28, the parts dealing with routine financial affairs are automatically cancelled if you or the representative become bankrupt or if the representative is convicted of an offence involving dishonesty, and in certain other cases.

Under section 29, a representation agreement ends in certain cases, including if you or the representative die, if the representative becomes incapable, or if you are declared incapable by a BC court and the court does not allow the representation agreement to continue.

Common questions

What decisions can an attorney make?

An attorney can make most financial and legal decisions. You can choose to limit the attorney’s power.

An attorney cannot make personal care or health care decisions for you. For these decisions, you need a representation agreement.

Can I limit my attorney’s powers?

You can give your attorney very limited power. For example, you can give your daughter a power of attorney only to cash your pension cheques for you. Or you can give someone very broad power to deal with all your financial and legal affairs.

What if I want my attorney to deal with my home or other real estate property?

A power of attorney for real estate has to be filed with the Land Title Office. Under Part 6 of the Land Title Act, it is valid for only three years from the date of signing, unless it says otherwise, or unless it is an enduring power of attorney.

To cancel a power of attorney dealing with land, you must file a document called a “notice of revocation” in the Land Title Office where the land is registered.

Do you need a lawyer to prepare these documents?

No, but it is advisable to use a lawyer who specializes in this area of law because it’s complex.

Can you register these documents somewhere?

At the Nidus Personal Planning Resource Centre & Registry, you can register enduring powers of attorney and representation agreements. Hospitals, banks, and government services can search there to find out who your attorney or representative is.

Who can help

With more information

The Nidus Personal Planning Resource Centre & Registry has detailed information on all aspects of enduring powers of attorney and representation agreements, including fact sheets, forms, and videos.

The Public Guardian and Trustee of British Columbia provides information on personal planning tools, including enduring powers of attorney and representation agreements.

  • Call 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
  • Call 1-800-663-7867 (toll-free)
  • Visit website
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