Difference between revisions of "Substitute Decision Making for Adult Guardianship (15:IV)"

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An adult with capacity is free to choose to sign a POA or not.  It is important to be aware of situations where a person may be putting undue pressure (including physical, financial or emotional threats, manipulation or coercion) on the adult.  For more information, refer to the discussion of undue influence below in section '''VIII: Adult Abuse and Neglect''' in this chapter.  Also refer to the BCLI guide on Undue Influence, which is helpful for understanding the dynamics surrounding undue influence in relation to other legal documents like POAs.  The Guide can be found at  
An adult with capacity is free to choose to sign a POA or not.  It is important to be aware of situations where a person may be putting undue pressure (including physical, financial or emotional threats, manipulation or coercion) on the adult.  For more information, refer to the discussion of undue influence below in section '''VIII: Adult Abuse and Neglect''' in this chapter.  Also refer to the BCLI guide on Undue Influence, which is helpful for understanding the dynamics surrounding undue influence in relation to other legal documents like POAs.  The Guide can be found at  
http://www. lawsociety. bc. ca/docs/practice/resources/guide-wills. pdf.
http://www. lawsociety. bc. ca/docs/practice/resources/guide-wills. pdf.
==== a) Formalities ====
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
• 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)
• 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)
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). 
As of September 1, 2011, an attorney must sign an EPOA in the presence of two witnesses before assuming their authority (PAA s 17).  If a person who is named as an attorney does not sign the POA, then the person is not required or legally able to act as an attorney.  If a person named as attorney does not sign, the authority of any other named attorney is not affected (unless the POA states otherwise).
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
• A spouse, child or parent of a person named as an attorney
• 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
• A person who is not at least 19 years of age
• A person who does not understand the type of communication used by the adult (unless interpretive assistance is used) 
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. 
Although there is no legal requirement to register a POA, an EPOA can be registered through the Personal Planning Registry.  More information about this service is available on their website: http://www.nidus.ca.
'''NOTE:'''  These formalities for a POA to be considered valid may be temporarily altered in extenuating circumstances. On May 19, 2020, the Minister of Public Safety and Solicitor General, under the authority of the Emergency Program Act, temporarily suspended these rigid requirements in a Ministerial Order, in order to accommodate for the public health and safety concerns in the wake of the COVID-19 pandemic. Under this Ministerial Order, ‘electronic presence’ may be enough to fulfill the formal requirements for ensuring the validity of a POA or RA when British Columbia is declared to be in a ‘state of emergency’. For more information, see Ministerial Order No. 1M62: https://www.bclaws.ca/civix/document/id/mo/mo/2020_m162.
==== b) Land Transactions ====
An adult might authorize the attorney(s) to make a transaction involving land (i.e. transfer of title, closure of sale of property, etc) on behalf of the adult.  If the authority of an attorney involves land transactions, then the POA must be executed and witnessed in accordance with the Land Title Act, RSBC 1996, c 250 [LTA]. 
A POA that grants authority to the attorney to make land transactions will expire after 3 years of its execution.  There is an exception to this where an adult signs an EPOA, or the POA expressly exempts itself from these provisions (LTA s 56).
A POA that confers the power to deal with land transactions and registration of land titles must be witnessed and notarized by a lawyer who is a member of the Law Society of British Columbia or a notary who is a member of the Society of Notaries Public of British Columbia.  This is because POAs that involve land transactions require more care and consultation to ensure that the adult is aware of the legal impact of conveying this authority to the attorney(s). 
==== c) Banks, Credit Unions and Other Financial Service Providers ====
Financial institutions and agents (e.g. banks, credit unions, investment advisors, customer service representatives, estate planners, etc.) may ask individuals to complete their institution’s POA.  This request normally occurs where an adult wishes to grant the attorney access to bank accounts to pay bills, make transfers, etc.  The financial institution may request that the adult and attorney fill out their institution’s Limited POA.  For more information about financial institution’s POA requirements and joint accounts refer to the Canadian Bankers Association website:
https://cba.ca/powers-of-attorney-bank-requirements?l=en-us.
If the adult signs an institution’s POA, this can sometimes create a conflict between POAs.  These important questions should be asked:
• What does the adult want to do?
• What kind of POA should apply? 
• Is the financial institution’s form suitable?
• 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.
'''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 ===
Enduring POAs (EPOAs) that have been made in some jurisdictions outside of BC, including other Canadian provinces and territories, or some other countries (e.g. United States, United Kingdom, Australia and New Zealand) may be recognized as legally valid in BC. These provisions are set out in s 38 of the ''PAA'', and subject to the Power of Attorney Regulation, BC Reg 111/2011 [''PAR'']. 
Section 4(3) of the ''PAR'' requires that the EPOA from another jurisdiction be accompanied by a certificate, from a solicitor who is permitted to practice in the jurisdiction where the EPOA was made.  The certificate must indicate that the EPOA meets the requirements set out in s 2(a) to (c) of the ''PAR''.
According to s 4(2)(a) to (c) of the ''PAR'', an EPOA from outside BC will be deemed a valid EPOA in BC where it:
• Grants authority to an attorney that comes into effect or continues to have effect while an adult is incapable of making decisions about their own affairs<br>
• Was made by a person who was, at the time of its making, residing elsewhere in Canada or in the United States, the United Kingdom, Australia or New Zealand<br>
• Is in accordance with the laws and continues to have legal effect in the jurisdiction in which it was made
Section 4(4) states that the EPOA is limited by the ''PAA'' and the jurisdiction in which the deemed enduring power of attorney was made.  Section 4(4) also requires that an attorney and the adult must both be at least 19 years of age before the attorney can exercise any powers or perform any duties. 
=== 4. Acting as an Attorney ===
Below is a description of the various duties and powers held by an attorney.  In most POAs, the attorney(s) will immediately be able to act on behalf of the adult.  However, in some types of POAs (e.g. a Springing or Limited), the terms of the POA will specify a ‘triggering event’ or date when an attorney has the authority to act on the adult’s behalf.  Regardless of when an attorney is permitted to act, the following duties and powers apply. 
==== a) Duties ====
The primary responsibility of an attorney is to act in accordance with the adult’s instructions, wishes, beliefs and values.  The ''PAA'' explicitly sets out a number of statutory duties and powers.  According to s 19(1) of the ''PAA'', an attorney must:
• Act honestly and in good faith
• Exercise the care, diligence and skill of a reasonably prudent person
• Act within the authority given in the POA
• Keep prescribed records and produce these records for inspection and copying upon request
An attorney must act in the adult’s best interest, taking into account the adult’s current wishes, known beliefs and values and explicit directions in the POA (''PAA'' s 19(2)).  Where reasonable, an attorney must give priority to meeting the personal care and health care needs of the adult, foster the independence of the adult, and encourage the adult’s involvement in any decision-making (''PAA'' s 19(3)).
Concerning the adult’s personal property and real property, an attorney must keep the adult’s property separate from their own property (PAA s 19(4)).  If the property is jointly owned by the adult and the attorney as joint tenants, or has been substituted for, or derived from, property owned as joint tenants, an attorney must also:
• Only invest the adult’s property in accordance with the ''Trustee Act'', RSBC 1996, c 464 [''TA'']
• '''Not''' dispose of property that is subject to a specific testamentary gift in an adult’s will
• Keep the adult’s personal effects at the disposal of the adult
If an EPOA explicitly says that an attorney will be exempt from these provisions, then the attorney is not legally obligated to fulfill these duties.
==== b) Powers ====
An adult may grant general or specific powers to an attorney in a POA.  An attorney may also be permitted to exercise statutory powers to act on behalf of the adult.  According to s 20 of the ''PAA'', an attorney named has the statutory power to:
• Make a gift or loan, or charitable gift, if the POA permits or certain conditions set out in the ''PAA'' are met (see below)
• Receive a gift or loan, if the POA permits
• Retain the services of a qualified person to assist the attorney
• Change or make a beneficiary designation, in limited circumstances (see below)
The scope of an attorney’s powers can be limited or expanded in the express wording of a POA.  An attorney is '''exercising authority improperly''' if:
• The attorney acts when the authority of the attorney is suspended or has ended
• Or the EPOA is not in effect, is suspended, terminated or invalid 
==== c) Gifts, Loans and Charitable Donations ====
An attorney may make a gift or loan, or a charitable gift from the adult’s property if the EPOA permits the attorney to do so, or if (''PAA'' s 20):
• The adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult’s dependents, and to satisfy other legal obligations
• The adult, when capable, made gifts or loans, or charitable gifts, of that nature; and
the total value of all gifts, loans and charitable gifts in a year is equal to or less than a prescribed value (set out in s 3 of the ''PAR'')
According to s 20(2) of the ''PAA'', an attorney may receive a gift or loan, if the EPOA permits. 
==== d) Creating a Will and Designating Beneficiaries ====
Attorneys are '''not allowed to make a will''' on behalf of an adult.  According to s 21 of the ''PAA'', any will that is made or changed by the attorney on behalf of an adult is not legally valid.  Further, if the adult has given instructions prohibiting delivery of the will to the attorney(s), then a person must not provide the will to the attorney(s).
An attorney is also '''not allowed to dispose of property''' that is designated as a testamentary gift in the adult’s will.  Section 19(3)(d) of the ''PAA'' provides an exception to this only where the disposition is necessary to comply with the attorney’s duties.  According to s 20(5), an attorney is allowed to change a beneficiary designation, in an instrument other than a will, in very limited circumstances set out in s 20(5)(b) of the ''PAA'', including:
• A change to a beneficiary designation if the court authorizes the change
• The creation of a new beneficiary designation if the designation is made in
o An instrument that is renewing, replacing or converting a similar instrument made by the capable adult, and the designated beneficiary remains the same
o A new instrument that is not renewing, replacing or converting a similar instrument made by the capable adult, and the newly designated beneficiary is the adult’s estate
==== e) Deeds ====
Where there exists a POA, an attorney may execute a deed under the seal of the attorney on behalf of the adult (whether an individual or a corporation).  According to s 7 of the ''PAA'', as long as it is within the scope of the attorney’s authority, such a deed is binding on the adult and has the same effect as if it were under the seal of the adult. 
==== f) Delegating and Retaining Services ====
An attorney is not allowed to delegate their authority to another person.  According to s 23 of the ''PAA'', an attorney must not delegate powers and authorities to others, unless expressly empowered to do so in the POA.  An attorney may delegate financial decisions concerning investment matters to a qualified investment specialist (e. g.  mutual fund manager) in accordance with the ''PGTA'' or the ''TA'', s 15.5. 
An attorney '''is''' permitted to retain services. According to s 20(4) of the ''PAA'', an attorney may retain the services of a qualified person to assist the attorney in doing anything the adult has authorized. 
==== g) Liability ====
An attorney who acts in the course of their legal duties is not liable for any loss or damage to the adult’s financial affairs, if the attorney complies with the following (''PAA'' s 22):
• The statutory duties of the attorney as set out in s 19 of the ''PAA''
• Any directions given by the court under s 36(1)(a) of the ''PAA''
• Any other duty that may be imposed by law
To protect innocent persons from liability arising from transactions made after the POA relationship has been terminated, BC’s PAA modifies the common law regarding the effects of termination.  If the attorney or a third party has acted in good faith, the PAA shifts the loss from the attorney or third parties to the adult.
Section 3 of the ''PAA'' protects the attorney from liability for acts done in good faith and in ignorance of the termination of their authority.  Section 4 protects third parties who deal in good faith with the attorney, where the third party and attorney are unaware of the termination.
'''NOTE:''' Section 57 of the ''LTA'' provides that the principal may file the termination of the agency in the Land Title Office.  Filing the notice protects the principal from registration of ‘instruments’ (as defined in the ''LTA'') executed by the attorney after the termination of their authority, even though the attorney and a third party may have been ignorant of the termination.
==== h) Records and Accounts ====
The adult’s account must be kept up to date (''PAR'' s 2). The adult’s assets and accounts must also be kept separate from those of the attorney and any third parties (''PAA'' s 19(4)).  Per s 2 of the ''PAR'', all assets belonging to the adult held by the attorney, and all books, documents, and account records entrusted to the attorney must be available for production to the capable adult at a reasonable time (usually during annual reviews).
==== i) Expenses and Remuneration ====
Payment to an individual (as opposed to the PGT) for service as an attorney under a POA is less common.  However, s 24 of the ''PAA'' allows for an attorney to be compensated where authorized in an EPOA, provided that the rate or amount is set out in the EPOA.  An attorney may also be reimbursed for reasonable expenses properly incurred in acting as the attorney.
=== 5. Changing, Revoking, or Ending a POA ===
A POA will be suspended or end in the following circumstances (see s 29(2) of the ''PAA''):
• Death of the adult or the attorney
• Bankruptcy of the adult
• Court appointment of a committee
• Revocation by the adult, who is still capable
• Resignation of the attorney(s) 
• If the attorney is the adult’s spouse and their marriage (or marriage-like relationship) ends
• If the attorney is a corporation and that corporation dissolves
• If the attorney is convicted of a prescribed offence, or an offence where the adult is the victim
• Per s 19.1 of the ''PPA'', a POA is suspended if the PGT becomes the statutory property guardian
Adults who are making a POA should be informed of the procedure for ending (revoking) or changing the POA.  Likewise, adults should also know how an attorney may resign.  In many situations, adults are unaware of their right to end a POA.  As long as an adult has capacity they can revoke a POA.  Details of how this is done appear below. 
==== a) Revocation by an Adult ====
An adult who has capacity can change, revoke or end a POA at any time.  A POA must be revoked in writing.  This is called a ‘Notice of Revocation’.  Telling someone that the POA is no longer in effect is not enough.  Each attorney must be given a signed Notice of Revocation (''PAA'' s 28(2)), and the revocation will not be effective until such notice has been given (''PAA'' s 28(4)). 
Although the ''PAA'' does not set out how a Notice of Revocation is to be delivered to the attorney(s), it is suggested that the adult deliver it by one of the following methods:
• By registered mail to the person’s last known address
• By leaving it:
o With the person
o At the person’s address
o With an adult who appears to reside with the person
o If the person operates a business, at the business, with an employee of the person
o By transmitting it by fax to the person with the number they provided for notification purposes
An adult should check if their POA lists other requirements or steps related to revoking in addition to the requirements from the legislation.
In addition to informing the attorney(s) in writing of the revocation, a capable adult who wishes to revoke an existing POA should:
• Request that the original POA be returned, if it has been given to someone
• Contact all businesses, institutions, and individuals to whom the existence of the POA was known, and notify them in writing that the POA has been revoked, effective immediately, requesting that they destroy all copies of the document which they possess;
• Register the revocation at the Land Title Office (only applies where the POA deals with land transactions)
• Inform Nidus, if the POA was registered with Nidus
==== b) Resignation of the Attorney(s) ====
An attorney can also formally resign at any time.  An attorney must give written notice to the adult and any other attorney(s).  The resignation of an attorney is effective when written notice is given, or on a later date specified in the notice. 
An attorney who loses the capacity to fulfill legal duties should resign.  Likewise, if an attorney is unable or unwilling to act on behalf of the adult, according to the adult’s instructions, wishes and values, then the attorney should resign. 
As of September 1, 2011, s 17(1) of the ''PAA'' outlines that an attorney who does not sign a POA is not obligated or authorized to act as an attorney.  It is possible to refuse becoming an attorney by simply choosing not to sign the POA.  Section 17(4) also states that an attorney who does not sign is not required to provide any notice of any kind but ethically the attorney should let the adult know.  If a person ''does'' sign the POA and wishes to resign from acting as attorney, then written notice must be provided to the adult, any other attorneys and, if the adult is incapable, a spouse, near relative or, if known to the attorney, close friend of the adult. 
If an adult who has capacity does not want the attorney to act, then the adult can revoke or change the POA.  If an adult no longer has capacity and others are concerned about the conduct of an attorney, then you may wish to contact the PGT. 
==== c) Duties after Termination ====
Even after a POA has come to an end, an attorney may not use any information gathered during the course of duties as attorney for personal or private profit.  Nor can an attorney solicit customers from the adult’s business. 
'''Regarding POAs dealing with Land:''' a POA which authorizes the attorney to deal in land transactions for the adult will expire automatically after t'''hree years from the date of its execution''', unless it is an EPOA or the document expressly exempts itself from that requirement in s 56 of the ''LTA''. 
=== 6. Note on POAs For LSLAP Students ===
When a client approaches LSLAP for assistance with creating a POA, the following a series of questions should be asked to ascertain the kind of POA that would best suit the needs of the client without putting the person at risk of being taken advantage of:
1. Is the client (mentally) capable, in the view of the clinician, of granting a POA? The presumption is that all adults are capable.  The general test is the ability to understand and appreciate the meaning of what they are trying to do in each particular case.  Warning signs of temporary or ongoing incapacity can include the following (bear in mind the list below is not comprehensive and the indicators below do not necessarily indicate incapacity):
• Sudden confusion, short term memory problems, disorientation
• Signs of depression
• Appears worried, distressed, overwhelmed
• Signs of substance abuse
• Inability to answer open-ended questions
Refer to BCLI Guide on Undue Influence for a full checklist at:
http://www.bcli.org/sites/default/files/undue%20influence_guide_final_cip.pdf
2. Why does the client want a POA?
3. For what purpose does the client require someone else to manage their financial affairs?
4. Does the client need to authorize broad powers, or can powers be narrowly defined and still meet the needs of the client?
5. What tasks does the attorney need to be authorized to do to meet the client’s needs?
6. When does the POA need to start?
7. Is it appropriate for the POA to have a built-in expiration date?
8. Has the client thought about who they wish to appoint as attorney(s)?
It may be helpful for students to provide information or guidance to clients on who the client should appoint as attorney, to reduce the risk of financial abuse, based on the following considerations:
• Appoint someone who will respect the client’s unique values and interests
• Appoint someone who is familiar with the duties and limitations of the role of attorney, or who will take the time and initiative to become educated about them
• Consider who is best placed to carry out the responsibility of handling the client’s financial matters: Does the person live nearby? Is the person easy to communicate with? Does the person like to deal with finance and money, or have some training or education in this regard?
• A spouse is not always the best choice – a partner could be in a situation of crisis when the older adult becomes incapable and the client should consider whether it is best for the partner to take on the additional responsibility at such a difficult time.
• Appointing more than one attorney could create practical problems.  For example, appointing all of the client’s children can create a situation of conflict where it may be challenging for the children to come to an agreement.  Having two attorneys under a joint power of attorney can also make it harder to make decisions quickly as consultation and discussion will be required to make any decision.  Nonetheless, multiple attorneys can be appropriate in some contexts.
Students should confer with their Supervising Lawyer if there is any doubt that the client understands and appreciates the POA.  Also note that an adult should not be required to have a POA as a condition of receiving any good or services, such as residence in an assisted living or community care facility. 
==== a) Misue and Abuse of a POA ====
The misuse or abuse of a POA is a criminal act and can be prosecuted under s 331 (theft by person holding Power of Attorney), s 332 (misappropriation of money held under direction), s 215 (failure to provide necessaries of life), or s 380 (fraud) of the ''Criminal Code''. 
If a student or client has concerns that a person may be abused or neglected, or is at risk of being abused or neglected, then in most instances the student should discuss these concerns with the client and provide them with access to appropriate support services (e.g., the Seniors Abuse & Information Line at 604-437-1940 or 1-866-437-1940). 
If a crime is suspected, consult with the Supervising Lawyer about how and whether to make a report to the appropriate authority.  Students need to remember their legal responsibility to maintain professional conduct and client confidentiality.  If there is concern that the adult is not capable, it may also be appropriate to refer the concern to the PGT.  For example, s 17 of the ''PGTA'' allows the PGT to investigate potential abuse of POA relationships.  Similar authority for the PGT to investigate abuse and neglect are provided by s 34 to 36 of the ''PAA''.
Power of Attorney abuse is a constant concern and unfortunately a frequent occurrence.  The abuse may manifest in pressure to grant a POA or misuse of funds or property under a POA.  Try to meet with the client alone, or at least without the potential attorney in the room, to be certain that the client truly wishes to create a POA and grant powers to the potential attorney in question.  Make sure to inquire about the relationship between the client and the proposed attorney, and be on alert for possible undue influence or fraud.  Refer to BCLI Guide on Undue Influence, above, for a full checklist of considerations and what to watch for.  For more information about abuse and neglect of older adults, you can also consult the following resources:
• BC Centre for Elder Advocacy and Support: www.bcceas.ca
• Canadian Centre for Elder Law: www.bcli.org/ccel
• Public Guardian & Trustee: www.trustee.bc.ca
• Vancouver Coastal Health: Resource: www.vchreact.ca
• Advocacy Centre for the Elderly website: www.acelaw.ca
'''NOTE:''' It is possible, and even common, for an adult to appoint an attorney under the ''PAA'' (to make financial decisions) and appoint a different person as a representative, under the ''RAA'' (to make health care decisions).  This commonly happens where a person who knows the personal wishes and values of the adult is adept at handling health care decisions, and a more financially astute person is chosen as attorney.


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