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Difference between revisions of "Substitute Decision Making for Adult Guardianship (15:IV)"
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Substitute Decision Making for Adult Guardianship (15:IV) (view source)
Revision as of 23:18, 10 October 2022
, 23:18, 10 October 2022→2. Creating a Power of Attorney
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The most important aspect of drafting a POA is to ensure that the document accurately reflects the adult’s specific wishes. Questions to ask include: | The most important aspect of drafting a POA is to ensure that the document accurately reflects the adult’s specific wishes. Questions to ask include: | ||
* What does the adult want to do? | |||
* Does the adult have capacity to make this POA? | |||
* Does the adult understand the nature of this POA? | |||
* Does the adult understand the potential legal impact of this POA? | |||
* Has the adult received suitable independent legal advice? | |||
* What type of authority does the attorney need? | |||
* Does the adult want to limit the attorney’s authority? | |||
* When should the POA be in effect (i.e. ongoing or limited)? | |||
* Has the adult created other POAs? | |||
Any adult can draft a POA. However, it is advisable to consult a lawyer or notary prior to finalizing a POA. Independent legal advice will help ensure the POA only grants an attorney the powers and authority that the adult wants to give. | Any adult can draft a POA. However, it is advisable to consult a lawyer or notary prior to finalizing a POA. Independent legal advice will help ensure the POA only grants an attorney the powers and authority that the adult wants to give. | ||
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Formalities are the specific requirements for a POA to be considered valid (i.e. whether the POA has to be signed or witnessed). According to s 16 and s 17 of the ''PAA'', an enduring POA must be: | Formalities are the specific requirements for a POA to be considered valid (i.e. whether the POA has to be signed or witnessed). According to s 16 and s 17 of the ''PAA'', an enduring POA must be: | ||
* In writing<br> | |||
* Signed and dated by the adult in the presence of two witnesses (only one witness is required if that witness is a lawyer who is a member of the Law Society of British Columbia or a notary who is a member in good standing of the Society of Notaries Public of British Columbia), and<br> | |||
* Signed and dated by the attorney(s) who agree to act in the presence of two witnesses (unless one witness is a lawyer or a notary)<br> | |||
A new POA will need to be signed by both the adult and the attorney(s). These signatures do not need to be in each other’s presence. In other words, the attorney and adult may sign the document separately. However, these signatures must each be witnessed by two capable adults (unless one witness is a lawyer or notary). | A new POA will need to be signed by both the adult and the attorney(s). These signatures do not need to be in each other’s presence. In other words, the attorney and adult may sign the document separately. However, these signatures must each be witnessed by two capable adults (unless one witness is a lawyer or notary). | ||
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According to s 16(6) of the ''PAA'', the following persons must not act as a witness to the signing of an EPOA: | According to s 16(6) of the ''PAA'', the following persons must not act as a witness to the signing of an EPOA: | ||
* A person named as an attorney<br> | |||
* A spouse, child or parent of a person named as an attorney<br> | |||
* An employee or agent of a person named as an attorney, unless the person named as an attorney is a lawyer, a notary, the PGT or a financial institution authorized to carry on trust business under the Financial Institutions Act<br> | |||
* A person who is not at least 19 years of age<br> | |||
* A person who does not understand the type of communication used by the adult (unless interpretive assistance is used) <br> | |||
The ''PAA'' provides a standard form that can be used to create a POA. The most up-to-date version of this form is generally also posted on the government of BC website: www.bclaws.ca. | The ''PAA'' provides a standard form that can be used to create a POA. The most up-to-date version of this form is generally also posted on the government of BC website: www.bclaws.ca. | ||
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If the adult signs an institution’s POA, this can sometimes create a conflict between POAs. These important questions should be asked: <br> | If the adult signs an institution’s POA, this can sometimes create a conflict between POAs. These important questions should be asked: <br> | ||
* What does the adult want to do?<br> | |||
* What kind of POA should apply?<br> | |||
* Is the financial institution’s form suitable?<br> | |||
* Has the adult received suitable independent legal advice? | |||
The adult should '''not''' sign a POA form without seeking legal advice. For more information on preparing documents, consult the '''Appendix''' or organisations such as Nidus Personal Planning Resource Centre and Registry. Contact information may be found in section '''II. D: Resource Organizations''' of this chapter. | The adult should '''not''' sign a POA form without seeking legal advice. For more information on preparing documents, consult the '''Appendix''' or organisations such as Nidus Personal Planning Resource Centre and Registry. Contact information may be found in section '''II. D: Resource Organizations''' of this chapter. | ||
'''NOTE:''' | '''NOTE:''' It is good practice to notify financial institutions and agents that a new POA has been made and/or that the previous POA has been revoked. This can be done in writing, with a copy of the new POA. | ||
=== 3. Other Jurisdictions === | === 3. Other Jurisdictions === | ||
