Difference between revisions of "Powers of Attorney and Representation Agreements (No. 180)"

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Latest revision as of 10:37, 31 March 2019

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.

Contents

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 (no. 176).

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 (no. 426).

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 (no. 428) 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.

Get 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.

Web: nidus.ca

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

Telephone: 604-660-4444 in the Lower Mainland and 250-387-6121 in Victoria
Toll-free: 1-800-663-7867
Web: trustee.bc.ca
Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.


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