Difference between revisions of "Powers of Attorney and Representation Agreements"
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{{REVIEWEDPLS | reviewer = [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert and [https://www.nidus.ca/biographies-of-key-personnel/ Joanne Taylor], Nidus Personal Planning Resource Centre and Registry|date= October 2018}} {{Dial-A-Law TOC|expanded = wills}} | {{REVIEWEDPLS | reviewer = [https://www.mclellanherbert.com/Our-Team.shtml Hugh McLellan], McLellan Herbert and [https://www.nidus.ca/biographies-of-key-personnel/ Joanne Taylor], Nidus Personal Planning Resource Centre and Registry|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. | 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== | ==Power of attorney== | ||
===With a power of attorney, you can appoint someone to manage your legal and financial affairs=== | ===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'''. | 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 [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-370/latest/rsbc-1996-c-370.html | 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. | ||
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. | 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. | ||
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===A power of attorney is different from a will=== | ===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, [ | 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, [https://dialalaw.peopleslawschool.ca/wills-and-estate-planning/ see our information on preparing a will and estate planning]. | ||
===Choosing your attorney=== | ===Choosing your attorney=== | ||
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A power of attorney ends automatically when you die. A general power of attorney ends if you become mentally incapable. | 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 | 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. | 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. | ||
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==Enduring power of attorney== | ==Enduring power of attorney== | ||
===With an enduring power of attorney, you can plan for your future care=== | |||
===With an | 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 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. | 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. [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'' | 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). | ||
It also explains that an adult is incapable if they cannot understand the six items listed in section 11. | It also explains that an adult is incapable if they cannot understand the six items listed in section 11. | ||
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===Why you should consider an enduring power of attorney=== | ===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 | 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, [https://dialalaw.peopleslawschool.ca/committeeship/ 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. | 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. | ||
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===The attorney has certain duties under an enduring power of attorney=== | ===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: | [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: | ||
* act honestly and in good faith | * act honestly and in good faith | ||
* exercise the care, diligence, and skill of a reasonably prudent person | * exercise the care, diligence, and skill of a reasonably prudent person | ||
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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: | 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: | ||
* becomes bankrupt | * 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 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 a corporation and the corporation dissolves, winds up, or ceases to carry on business | ||
* is convicted of an offence under the | * is convicted of an offence under the Power of Attorney Act or an offence where you were the victim | ||
[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: | [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: | ||
* when you die | |||
when you die | * if you have a '''committee''' (when someone is appointed by the court to manage your legal and financial affairs) | ||
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 declares you to be incapable | * if a BC court terminates the power of power of attorney | ||
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. | 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== | ==Representation agreement== | ||
===A representation agreement is another tool you can use to plan for your future care=== | ===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. | 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'' | [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. | You need to be at least 19 years old to make a representation agreement. | ||
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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. | 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=== | ===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. | [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. | ||
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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. | 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 [ | 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 [https://dialalaw.peopleslawschool.ca/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=== | ===Choosing a representative=== | ||
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===A representation agreement may conflict with an enduring power of attorney=== | ===A representation agreement may conflict with an enduring power of attorney=== | ||
If: | If: | ||
* your representation agreement includes routine management of financial affairs, and | * 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 | * you also have an enduring power of attorney (explained above) dealing with your financial affairs, and | ||
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==Common questions== | ==Common questions== | ||
===What decisions can an attorney make?=== | ===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 can make most financial and legal decisions. You can choose to limit the attorney’s power. | ||
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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. | 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?=== | ===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'' | 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. | 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. | ||
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===With more information=== | ===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 '''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] | * [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. | 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 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria | ||
* Call 1-800-663-7867 (toll-free) | * Call 1-800-663-7867 (toll-free) | ||