Difference between revisions of "Preparing a Power of Attorney"

From Clicklaw Wikibooks
Jump to navigation Jump to search
Line 1: Line 1:
{{REVIEWEDPLS | reviewer = [[Kevin Smith]] |date= March 2017}}
{{REVIEWEDPLS | reviewer = [[Kevin Smith]] |date= March 2019}}
{{Power of Attorney TOC}}A '''power of attorney''' is a legal document in which you authorize another person to take care of financial and legal matters for you. It is one of several options for “personal planning”, which involves making arrangements for while you are alive but may need assistance.
{{Power of Attorney TOC}}A '''power of attorney''' is a legal document. It gives someone you trust the power to look after your legal and financial affairs. This might include paying bills, depositing or withdrawing money from your bank account, investing your money, or selling your home.
[[File:Powerofattorneysigning.png|thumb|275px|right| link=| <span style="font-size:50%;">Image via www.istockphoto.com</span>]]


==What a power of attorney allows you to do==
The person you give this power to is called the '''attorney'''. In this case “attorney” doesn’t mean “lawyer.” It simply means the person you’ve chosen to be your decision-maker.
When you make a power of attorney, you give someone the authority to take care of financial and legal matters for you. This might include paying bills, depositing or withdrawing money from your bank account, investing your money, or selling your home.
{{PLSTipsbox
| text = A power of attorney is different from a will. A will helps others distribute your possessions after your death. A power of attorney helps you plan out the management of your affairs '''during your lifetime'''.  
}}


The person you give this power to is called the '''attorney'''. (In this case, attorney does not mean lawyer.)
== Why you should consider a power of attorney ==
A power of attorney is a simple and inexpensive way to plan ahead.


You are called the '''adult'''.
The power you give to your attorney can be limited to a single decision, or it can extend more broadly. There are differents types of powers of attorney.


A power of attorney does not give the attorney authority to make decisions about your personal care or health care. It covers financial and legal matters only.  
With a '''general power of attorney''', your attorney can manage your affairs while you are '''still ''mentally'' capable of managing your own affairs, but ''physically'' unable'''. This may be a good option if you have mobility issues or are ill. You can give your attorney broad powers to do almost anything with your finances and property.


A power of attorney is different from [[Writing Your Will|a will]], which provides for the distribution of the things you own after your death. A power of attorney is a way to plan for the handling of your affairs during your lifetime.  
{{PLSStorybox
| image = [[File:Power_of_Attorney_-_Akira.jpg|link=]]
| text      = “I was diagnosed with chronic fatigue syndrome in the fall. Sure, I could still calculate how much I owe the credit card company, if you asked me to. But I just don’t have the energy to juggle my everyday finances. Now is a time to focus on my health.” <br>- Akira, South Burnaby
}}


=== It can help if you physically can't take care of matters ===
If you prefer, you can restrict your attorney’s powers to a '''specific task or time period'''. This is called a '''limited power of attorney''' (also called a '''specific power of attorney'''). It’s often used by people who can’t manage their affairs because they’re injured or away travelling.


{{PLSStorybox
{{PLSStorybox
| image = [[File:Headshot_-_Power_of_Attorney_-_Helga_-_2017-03-16.jpg|link=]]  
| image = [[File:Power_of_Attorney_-_Walter.jpg|link=]]
| text = "I plan to spend the summer visiting my grandchildren in France. I'll be gone for several months, and I want to enable my niece to pay my bills while I'm away. I learned I can do that by making a power of attorney that is '''limited'''. In it, I authorized my niece to access my bank account only to deposit my pension cheques and pay my bills, and only until I come home from my trip." <br> – Helga, Victoria
| text     = ”My house is on the market. My father got sick and I had to make a last-minute trip to Germany. I prepared a limited power of attorney so my niece Sara could sign the papers if my home sells while I’m gone. The authority ends when I come home from my trip.” <br>- Walter, Victoria
}}
}}


There are several reasons you might make a power of attorney. A power of attorney can be a good option if you are physically unable to look after your affairs due to travel or injury.
With an '''enduring power of attorney''', you can '''plan in advance for any future incapacity'''. A family member, or someone else of your choice, is entrusted to manage your financial affairs if you can’t. Their authority to act for you can start right away, and then continue  — or “endure”  — after you are mentally incapable, whether due to illness or an accident or age-related decline. For more, see the section Enduring Power of Attorney.
 
A power of attorney enabling someone to look after your affairs while you are traveling would be an example of a '''limited power of attorney'''. This is also called a '''specific power of attorney'''. Your attorney’s powers are limited to a specific task or a specific period of time. For example, you give someone power of attorney to sign the papers on the sale of your home while you’re out of the country on vacation.
 
===It can help if you become mentally incapable===


{{PLSStorybox
{{PLSStorybox
| image = [[File:Headshot_-_Power_of_Attorney_-_Anita_-_2017-03-16.jpg |link=]]
| image = [[File:Power_of_Attorney_-_Anita.jpg|link=]]
| text = "My husband William had an accident at work. He is in hospital in a coma. We have a joint bank account, so I can pay the bills. But our car is in William’s name and the insurance is due. William can’t sign. I wish William had made an enduring power of attorney appointing me as attorney. That way I could renew the insurance." <br>– Anita, Burnaby
| text     = ”My husband’s in a coma  — he had an accident at work. We have a joint bank account, so I can still pay the bills. But the car insurance is due and the insurance company won’t let me renew it. They say it’s because our car is in his name. So, on top of everything else, I’ve got a car I can’t drive and two young kids. If we’d thought to prepare enduring powers of attorney, I could have easily renewed the insurance.” <br>- Anita, Burnaby
}}
}}


Another reason you might make a power of attorney is to prepare for the chance you become mentally incapable due to age, accident or illness. With an '''enduring power of attorney''', you can name someone to act on your behalf for financial and legal affairs, and make the appointment continue in effect—or endure—if you become incapable of making decisions. (With a '''general power of attorney''', the appointment ends if you become mentally incapable.)
'''A power of attorney can be set up so that it doesn’t become active until something triggers it'''. This is called a '''springing power of attorney'''. The triggering event might be that two physicians have declared you mentally incapable. At that point, your attorney can take over your affairs.


See the section "[[Enduring Powers of Attorney]]" for more on this type of power of attorney.
Both an enduring power of attorney and a springing power of attorney can be '''limited''' to a specific purpose or time period.


A power of attorney can also be set up to come into effect only when something happens to trigger it. This is called a '''springing power of attorney'''. You can appoint someone to act on your behalf if the triggering event happens. The triggering event can be if you become mentally incapable. For example, the appointment can be worded to 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''' you are incapable.  
{{PLSTipsbox
| text = A power of attorney deals only with your financial and legal affairs. You can choose someone to help you make your '''health care and personal care decisions''' if you become incapable by signing a '''representation agreement'''. For more information, visit the People’s Law School website at peopleslawschool.ca.
}}


[[File:Power_of_Attorney_Types.png| link=]]
=== You can still make decisions ===
You needn’t worry that drawing up a power of attorney will immediately strip you of the ability to run your own life. Your attorney can’t override decisions you make while you’re mentally capable. And even if you become incapable, your attorney has a legal duty to encourage your involvement, as much as possible, in any decision-making that affects you.


The types of power of attorney are not mutually exclusive. For example, an enduring power of attorney or a springing power of attorney can be limited to a specific purpose or time period.
== You need to be “mentally capable” to sign a power of attorney ==
To make a decision for yourself or to take an action (like signing a document), the law says you must be “'''mentally capable'''.” Generally, this means you have to demonstrate you understand what you’re doing and the consequences of your actions.  


== How it compares to other planning options ==
It’s important to appreciate mental capability in the following two contexts:


=== For health care and personal care decisions ===
# '''You must be mentally capable at the time you sign the power of attorney'''. You have to understand that you’re giving your attorney the power to deal with your financial and legal affairs. There is a specific six-part capacity test (see below), and special rules for signing an enduring power of attorney, discussed in more detail below.
# '''Mental capability also matters at the moment the power of attorney is used'''. For example, a general power of attorney can no longer be used when the person who prepared it can’t manage their own legal and financial affairs. But an enduring power of attorney can continue to be used even after someone is mentally incapable.


A power of attorney deals '''only''' with your financial and legal affairs. It does not enable your attorney to make decisions about your health care and personal care. For example, a power of attorney would not allow your attorney to consent to surgery on your behalf or to make decisions about where you will live.
{{PLSTipsbox
| text = Even if someone can’t sign a power of attorney, they may still be able to prepare a standard representation agreement (commonly known as a section 7 representation agreement). With it, a trusted person can help make their routine financial and legal decisions (and it can cover health care and personal care decisions too). It’s often used as a last resort if someone hasn’t done other planning. For more information, visit the People’s Law School website at peopleslawschool.ca.
}}


Under BC law, if you want to have someone of your choice make decisions about your health care and personal care when you no longer can, you can make a '''representation agreement'''. In a representation agreement, you name a "representative" to make health and personal care decisions for you, or assist you in making decisions. You can name whoever you want as your representative—a friend, relative, spouse or adult child.
== Choosing your attorney ==
Choosing your attorney is an important decision, and it’s not always easy. Your attorney will have significant powers and responsibilities.


Another option for health care planning is an '''advance directive'''. It allows you to write instructions to your health care provider about what kind of health care treatment you want and don’t want, including life support or life-prolonging medical interventions. No one will be asked to make a decision for you when the advance directive applies.
Most people ask a family member or close friend to be their attorney. You can also ask a lawyer, a '''notary public''', a private trust company, or the '''Public Guardian and Trustee'''.
 
Important things to consider when choosing an attorney include the following:
* '''Trust'''. The most important thing is to choose someone you trust. Your attorney will have access to all of your money and property. You need to be confident they won’t misuse their power.
* '''Ability'''. The law says the person you choose needs to understand the responsibilities involved. Think about how complex your finances are, and choose someone you know can deal with them.
* '''Loyalty'''. Will the person you choose ensure your needs and wishes — not theirs — come first? Take the time to talk with your candidate about what you want and would expect of them. Make sure they’re comfortable making decisions for you.
* '''Age and proximity'''. Your attorney must be at least 19 years old. They ''can'' be someone who lives outside the province, but that’s not always recommended. Think about what you’re asking your attorney to do. It’s often more convenient if they live close by.  


{{PLSTipsbox
{{PLSTipsbox
|width = 50%
| text = If you name only one attorney, it’s important to consider also naming an alternate who will take over if something happens to your first attorney. You need to clearly describe the circumstances in which an alternate may take over.  
| text = With a “section 7 representation agreement”, your representative can be authorized to handle “routine management” of financial affairs and most legal matters, in addition to health care and personal care. This would allow them to pay your bills, deposit your pension and other income, and make investments for you. However, they can not handle financial matters beyond the routine, such as buy or sell your real estate or take out a new loan in your name. See [http://www.nidus.ca/ Nidus Personal Planning Resource Centre] for more on representation agreements.
}}
}}


===For financial and legal matters===
'''There are two restrictions on who can be appointed attorney'''. You cannot appoint:
# a caregiver who is paid to provide you with personal or health care services, or
# an employee at a facility where you live if the facility provides personal or health care services.


A power of attorney is a simple and inexpensive way to arrange help with your financial and legal affairs. It is the most common way to ensure the person of your choice is able to step into your shoes and handle your finances if you become incapable of doing so.  
These restrictions don’t apply if the person providing the care is your child, parent, or spouse.  


But there are other planning options to be aware of.
=== You can pay your attorney ===
If you choose to pay your attorney, your power of attorney document must authorize the fee and set the rate.  


In a '''trust agreement''', you can put all your property and income in a trust. You can name someone of your choice to be the trustee, and spell out terms of how the property is to be managed. The trust continues if you become incapable. It can even survive death, ensuring that your affairs continue to be managed in a way that is consistent with the terms in the trust.
Even if you don’t agree to pay them, your attorney is entitled to be paid back for any reasonable out-of-pocket expenses.


If your finances are not complicated, a '''pension trusteeship''' can be an option. Let’s say your income is limited to federal income security programs such as Old Age Security and the Canada Pension Plan, and your expenses are just rent, food and utilities. A capable family member or friend can sign up with the income security programs to receive your pension funds as trustee to pay the rent and bills.
If a trust company or the Public Guardian and Trustee is your attorney, they’ll charge fees.  


If your income is directly deposited into your bank account, you could set up a '''joint bank account''' with a trusted relation or friend. That person could help you with paying bills and making withdrawals. (A joint bank account introduces some risks that other planning options don't. For example, any person named on the joint account is able to withdraw money at any time. As well, if one of the account holders dies, the surviving account holder becomes the owner of the account.)
== The attorney’s powers and responsibilities ==
When you create a power of attorney, you give someone the legal right to take care of '''financial and legal matters''' for you. This
often includes paying bills and managing bank accounts. It can include bigger things like investing your money, insuring your car, or selling your assets.


If you become incapable of making decisions independently, and you do not have an enduring power of attorney or another planning tool in place, your loved ones may need to go to court to get the legal authority to handle your affairs. This is called getting "committeeship". Going to court is an expensive and time-consuming process. There is no guarantee the court will decide to grant the legal powers asked for.
With a '''general power of attorney''', you can give your attorney broad powers to do anything
with your property and money that you can’t do for yourself. Or you can restrict your attorney’s power with a '''limited power of attorney'''.  


==The time to make a power of attorney==
{{PLSTipsbox
If you become incapable of making decisions independently, it is too late to make a power of attorney. You have to plan ahead and do it in advance.
| text = Nidus Personal Planning Resource Centre and Registry offers a fact sheet on the general and specific authorities you can give to your attorney under an enduring power of attorney. Talk to a lawyer or notary if you have questions about what powers you want to give to your attorney.
}}


In considering personal planning options, be aware there are different "legal capacity" requirements. Legal capacity refers to a person’s ability to make binding decisions or agreements.  
=== What you can do to prevent misuse of your power of attorney ===
There are things you can do to ensure your power of attorney isn’t abused. You can choose to:
* Talk to a friend, family member, community advocate, or legal professional before preparing a power of attorney. 
* Name more than one person. Make sure the people you name will work well together to make decisions on your behalf. 
* Put limits on the power you give your attorney. You can require the attorney to keep records of your finances and show you those records regularly. 
* Appoint a monitor to oversee the activities of your attorney.
* Give the power of attorney document to someone else you trust, and tell them when to give it to the attorney. 
* Insist that your attorney get legal advice about their responsibilities.
* Learn about an '''attorney’s responsibilities'''. The attorney is like your agent. They must:
:* act honestly, in good faith, and in your best interests,
:* not take any personal benefit from your assets,
:* keep accurate records of any financial activities, and 
:* keep your affairs separate from their own.  


Someone who doesn’t have the legal capacity to make an enduring power of attorney may still be able to make a representation agreement. A person can make a "section 7 representation agreement" even if they cannot manage their routine financial affairs or look after their daily needs. This makes a section 7 representation agreement a very useful "last resort" document when someone has not made any planning documents and they are starting to lose their capacity.
{{PLSTipsbox
| text = You and your attorney can learn about an attorney’s responsibilities in the publication ''Managing Someone Else’s Money''. This can be accessed at wiki.clicklaw.bc.ca.
}}
 
=== There are special requirements relating to real estate ===
If you own real estate, you may want your attorney to be able to sell it or otherwise handle it. Anyone who owns their own home should consider this. If you want your attorney to be able to deal with real estate, here are a few things you should know:
# '''You need to have a lawyer or a notary public prepare the document'''. You must sign the power of attorney in the presence of a lawyer or notary, and the lawyer or notary must also sign.
# '''Your power of attorney must use the exact name that’s listed on your property with the Land Title Office'''. For instance, if the name on the property deed is “Chung Hon Lee,” you can’t use “C.H. Lee” in the power of attorney. Do a search through the Land Title Office if you’re not sure what name you used.
# '''You must register the power of attorney at the Land Title Office and pay the registration fee'''. Check with the office to make sure your power of attorney meets the requirements as soon as you’ve prepared it.
# '''Your attorney can’t sell or transfer your property to themselves'''. If you want to include that power, it has to be specifically written in. Discuss this with your lawyer or notary.
# '''A power of attorney for real estate ends automatically in three years'''. This applies unless it’s an enduring power of attorney or you say in the power of attorney “Section 56 of the ''Land Title Act'' does not apply.”
 
== Preparing the power of attorney ==
Most people go to a notary public or a lawyer to prepare their power of attorney. If you have a complicated or unusual situation, it’s best to get professional help. Phone around and compare prices. You should be able to get free quotes. See the Where To Get Help section for help finding a legal professional.  
 
You ''must'' go to a notary public or lawyer if you want:
* The power of attorney to be recognized at the Land Title Office (see above). 
* Your attorney to have the power to sell your vehicle or renew its insurance. In this case, your power of attorney will need to be '''notarized'''.


{{PLSTipsbox
{{PLSTipsbox
|width = 50%
| text = You can choose when you want your power of attorney to start. A power of attorney can be written so that your attorney has the legal authority to act as soon as it’s signed. However, this doesn’t mean it has to be ''used'' immediately. Make sure your attorney knows when you want them to act.
| text = A lawyer or notary public can guide you on which planning documents best fit your situation. See the "[[Where to Get Help for Power of Attorney|Where to Get Help]]" section for help finding a legal professional to work with.  
}}
}}  


If you decide to make a power of attorney, see the steps involved in "[[Making a Power of Attorney]]" and the unique considerations when making an [[Enduring Powers of Attorney|enduring power of attorney]].


{{Power of Attorney Navbox}}
{{Power of Attorney Navbox}}

Revision as of 05:53, 22 March 2019

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kevin Smith in March 2019.
Power of Attorney
Power of Attorney full cover image.png
This page is from
Power of Attorney.
See the full contents.
Contents
Introduction
Preparing a Power of Attorney
Enduring Power of Attorney
Ending a Power of Attorney
Common Questions
Where to Get Help
Glossary ‎
From
Visit more from
People's Law School
People's Law School
v • d • e

A power of attorney is a legal document. It gives someone you trust the power to look after your legal and financial affairs. This might include paying bills, depositing or withdrawing money from your bank account, investing your money, or selling your home.

The person you give this power to is called the attorney. In this case “attorney” doesn’t mean “lawyer.” It simply means the person you’ve chosen to be your decision-maker.

Tip v3.jpg
A power of attorney is different from a will. A will helps others distribute your possessions after your death. A power of attorney helps you plan out the management of your affairs during your lifetime.

Why you should consider a power of attorney

A power of attorney is a simple and inexpensive way to plan ahead.

The power you give to your attorney can be limited to a single decision, or it can extend more broadly. There are differents types of powers of attorney.

With a general power of attorney, your attorney can manage your affairs while you are still mentally capable of managing your own affairs, but physically unable. This may be a good option if you have mobility issues or are ill. You can give your attorney broad powers to do almost anything with your finances and property.

Power of Attorney - Akira.jpg
“I was diagnosed with chronic fatigue syndrome in the fall. Sure, I could still calculate how much I owe the credit card company, if you asked me to. But I just don’t have the energy to juggle my everyday finances. Now is a time to focus on my health.”
- Akira, South Burnaby

If you prefer, you can restrict your attorney’s powers to a specific task or time period. This is called a limited power of attorney (also called a specific power of attorney). It’s often used by people who can’t manage their affairs because they’re injured or away travelling.

Power of Attorney - Walter.jpg
”My house is on the market. My father got sick and I had to make a last-minute trip to Germany. I prepared a limited power of attorney so my niece Sara could sign the papers if my home sells while I’m gone. The authority ends when I come home from my trip.”
- Walter, Victoria

With an enduring power of attorney, you can plan in advance for any future incapacity. A family member, or someone else of your choice, is entrusted to manage your financial affairs if you can’t. Their authority to act for you can start right away, and then continue — or “endure” — after you are mentally incapable, whether due to illness or an accident or age-related decline. For more, see the section Enduring Power of Attorney.

Power of Attorney - Anita.jpg
”My husband’s in a coma — he had an accident at work. We have a joint bank account, so I can still pay the bills. But the car insurance is due and the insurance company won’t let me renew it. They say it’s because our car is in his name. So, on top of everything else, I’ve got a car I can’t drive and two young kids. If we’d thought to prepare enduring powers of attorney, I could have easily renewed the insurance.”
- Anita, Burnaby

A power of attorney can be set up so that it doesn’t become active until something triggers it. This is called a springing power of attorney. The triggering event might be that two physicians have declared you mentally incapable. At that point, your attorney can take over your affairs.

Both an enduring power of attorney and a springing power of attorney can be limited to a specific purpose or time period.

Tip v3.jpg
A power of attorney deals only with your financial and legal affairs. You can choose someone to help you make your health care and personal care decisions if you become incapable by signing a representation agreement. For more information, visit the People’s Law School website at peopleslawschool.ca.

You can still make decisions

You needn’t worry that drawing up a power of attorney will immediately strip you of the ability to run your own life. Your attorney can’t override decisions you make while you’re mentally capable. And even if you become incapable, your attorney has a legal duty to encourage your involvement, as much as possible, in any decision-making that affects you.

You need to be “mentally capable” to sign a power of attorney

To make a decision for yourself or to take an action (like signing a document), the law says you must be “mentally capable.” Generally, this means you have to demonstrate you understand what you’re doing and the consequences of your actions.

It’s important to appreciate mental capability in the following two contexts:

  1. You must be mentally capable at the time you sign the power of attorney. You have to understand that you’re giving your attorney the power to deal with your financial and legal affairs. There is a specific six-part capacity test (see below), and special rules for signing an enduring power of attorney, discussed in more detail below.
  2. Mental capability also matters at the moment the power of attorney is used. For example, a general power of attorney can no longer be used when the person who prepared it can’t manage their own legal and financial affairs. But an enduring power of attorney can continue to be used even after someone is mentally incapable.
Tip v3.jpg
Even if someone can’t sign a power of attorney, they may still be able to prepare a standard representation agreement (commonly known as a section 7 representation agreement). With it, a trusted person can help make their routine financial and legal decisions (and it can cover health care and personal care decisions too). It’s often used as a last resort if someone hasn’t done other planning. For more information, visit the People’s Law School website at peopleslawschool.ca.

Choosing your attorney

Choosing your attorney is an important decision, and it’s not always easy. Your attorney will have significant powers and responsibilities.

Most people ask a family member or close friend to be their attorney. You can also ask a lawyer, a notary public, a private trust company, or the Public Guardian and Trustee.

Important things to consider when choosing an attorney include the following:

  • Trust. The most important thing is to choose someone you trust. Your attorney will have access to all of your money and property. You need to be confident they won’t misuse their power.
  • Ability. The law says the person you choose needs to understand the responsibilities involved. Think about how complex your finances are, and choose someone you know can deal with them.
  • Loyalty. Will the person you choose ensure your needs and wishes — not theirs — come first? Take the time to talk with your candidate about what you want and would expect of them. Make sure they’re comfortable making decisions for you.
  • Age and proximity. Your attorney must be at least 19 years old. They can be someone who lives outside the province, but that’s not always recommended. Think about what you’re asking your attorney to do. It’s often more convenient if they live close by.
Tip v3.jpg
If you name only one attorney, it’s important to consider also naming an alternate who will take over if something happens to your first attorney. You need to clearly describe the circumstances in which an alternate may take over.

There are two restrictions on who can be appointed attorney. You cannot appoint:

  1. a caregiver who is paid to provide you with personal or health care services, or
  2. an employee at a facility where you live if the facility provides personal or health care services.

These restrictions don’t apply if the person providing the care is your child, parent, or spouse.

You can pay your attorney

If you choose to pay your attorney, your power of attorney document must authorize the fee and set the rate.

Even if you don’t agree to pay them, your attorney is entitled to be paid back for any reasonable out-of-pocket expenses.

If a trust company or the Public Guardian and Trustee is your attorney, they’ll charge fees.

The attorney’s powers and responsibilities

When you create a power of attorney, you give someone the legal right to take care of financial and legal matters for you. This often includes paying bills and managing bank accounts. It can include bigger things like investing your money, insuring your car, or selling your assets.

With a general power of attorney, you can give your attorney broad powers to do anything with your property and money that you can’t do for yourself. Or you can restrict your attorney’s power with a limited power of attorney.

Tip v3.jpg
Nidus Personal Planning Resource Centre and Registry offers a fact sheet on the general and specific authorities you can give to your attorney under an enduring power of attorney. Talk to a lawyer or notary if you have questions about what powers you want to give to your attorney.

What you can do to prevent misuse of your power of attorney

There are things you can do to ensure your power of attorney isn’t abused. You can choose to:

  • Talk to a friend, family member, community advocate, or legal professional before preparing a power of attorney.
  • Name more than one person. Make sure the people you name will work well together to make decisions on your behalf.
  • Put limits on the power you give your attorney. You can require the attorney to keep records of your finances and show you those records regularly.
  • Appoint a monitor to oversee the activities of your attorney.
  • Give the power of attorney document to someone else you trust, and tell them when to give it to the attorney.
  • Insist that your attorney get legal advice about their responsibilities.
  • Learn about an attorney’s responsibilities. The attorney is like your agent. They must:
  • act honestly, in good faith, and in your best interests,
  • not take any personal benefit from your assets,
  • keep accurate records of any financial activities, and
  • keep your affairs separate from their own.
Tip v3.jpg
You and your attorney can learn about an attorney’s responsibilities in the publication Managing Someone Else’s Money. This can be accessed at wiki.clicklaw.bc.ca.

There are special requirements relating to real estate

If you own real estate, you may want your attorney to be able to sell it or otherwise handle it. Anyone who owns their own home should consider this. If you want your attorney to be able to deal with real estate, here are a few things you should know:

  1. You need to have a lawyer or a notary public prepare the document. You must sign the power of attorney in the presence of a lawyer or notary, and the lawyer or notary must also sign.
  2. Your power of attorney must use the exact name that’s listed on your property with the Land Title Office. For instance, if the name on the property deed is “Chung Hon Lee,” you can’t use “C.H. Lee” in the power of attorney. Do a search through the Land Title Office if you’re not sure what name you used.
  3. You must register the power of attorney at the Land Title Office and pay the registration fee. Check with the office to make sure your power of attorney meets the requirements as soon as you’ve prepared it.
  4. Your attorney can’t sell or transfer your property to themselves. If you want to include that power, it has to be specifically written in. Discuss this with your lawyer or notary.
  5. A power of attorney for real estate ends automatically in three years. This applies unless it’s an enduring power of attorney or you say in the power of attorney “Section 56 of the Land Title Act does not apply.”

Preparing the power of attorney

Most people go to a notary public or a lawyer to prepare their power of attorney. If you have a complicated or unusual situation, it’s best to get professional help. Phone around and compare prices. You should be able to get free quotes. See the Where To Get Help section for help finding a legal professional.

You must go to a notary public or lawyer if you want:

  • The power of attorney to be recognized at the Land Title Office (see above).
  • Your attorney to have the power to sell your vehicle or renew its insurance. In this case, your power of attorney will need to be notarized.
Tip v3.jpg
You can choose when you want your power of attorney to start. A power of attorney can be written so that your attorney has the legal authority to act as soon as it’s signed. However, this doesn’t mean it has to be used immediately. Make sure your attorney knows when you want them to act.


v • d • e
Preparing a Power of Attorney
Enduring Power of Attorney
Ending a Power of Attorney
Common Questions
Resources
About


Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Power of Attorney © People's Law School is, except for the images, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence.
Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Preparing_a_Power_of_Attorney&oldid=42159"