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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 00:15, 25 September 2020
, 00:15, 25 September 2020→d) Attorney(s)
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An attorney is an adult who is capable and willing to carry out the financial tasks and/or make financial decisions on behalf of the adult. An attorney is required to sign the POA to signify that they accept the role and the responsibility. If an attorney is not willing to accept this role, then the attorney should not sign the POA. In this context, an ‘attorney’ does not need to be a lawyer, although an adult may wish to appoint their lawyer to act as an attorney. An attorney must be (PAA s 18 and s 19): | An attorney is an adult who is capable and willing to carry out the financial tasks and/or make financial decisions on behalf of the adult. An attorney is required to sign the POA to signify that they accept the role and the responsibility. If an attorney is not willing to accept this role, then the attorney should not sign the POA. In this context, an ‘attorney’ does not need to be a lawyer, although an adult may wish to appoint their lawyer to act as an attorney. An attorney must be (PAA s 18 and s 19): | ||
• An adult (i. e. at least 19 years of age), the PGT or certain financial institutions | • An adult (i. e. at least 19 years of age), the PGT or certain financial institutions<br> | ||
• Mentally capable to carry out the financial tasks | • Mentally capable to carry out the financial tasks<br> | ||
• Able to understand and fulfill their legal duties | • Able to understand and fulfill their legal duties<br> | ||
• Able and willing to act in accordance with the instructions, wishes, values and beliefs of the adult | • Able and willing to act in accordance with the instructions, wishes, values and beliefs of the adult<br> | ||
• Acting voluntarily/on their own. | • Acting voluntarily/on their own.<br> | ||
Section 18 of the PAA states who may act as an attorney. One or more of the following persons can be named: | Section 18 of the PAA states who may act as an attorney. One or more of the following persons can be named: | ||
• An individual, other than: | • An individual, other than:<br> | ||
o An individual who provides personal care or health care services to the adult for compensation or, | o An individual who provides personal care or health care services to the adult for compensation or,<br> | ||
o An employee of a facility where the adult resides and where the adult receives personal care or health services. | o An employee of a facility where the adult resides and where the adult receives personal care or health services.<br> | ||
o Exception: if the individual is a child, parent or spouse of the adult, in which case they may be named as attorney | o Exception: if the individual is a child, parent or spouse of the adult, in which case they may be named as attorney<br> | ||
• The Public Guardian and Trustee | • The Public Guardian and Trustee<br> | ||
• A financial institution authorized to carry on trust business under the Financial Institutions Act, RSBC 1996, c 141 [FIA]. | • A financial institution authorized to carry on trust business under the Financial Institutions Act, RSBC 1996, c 141 [FIA].<br> | ||
More than one person can act as an attorney. An adult who names more than one attorney may assign each a different area of authority, or all or part of the same area of authority (PAA s 18(4)). The adult might prefer to define distinct roles for each attorney (i.e. appoint one as the attorney for certain transactions, such as personal banking and a second individual as their attorney over different matters, such as property). The POA should be clear about the roles and responsibilities of each attorney and whether or not unanimous consent is necessary in each type of transaction. | More than one person can act as an attorney. An adult who names more than one attorney may assign each a different area of authority, or all or part of the same area of authority (PAA s 18(4)). The adult might prefer to define distinct roles for each attorney (i.e. appoint one as the attorney for certain transactions, such as personal banking and a second individual as their attorney over different matters, such as property). The POA should be clear about the roles and responsibilities of each attorney and whether or not unanimous consent is necessary in each type of transaction. | ||
According to s 18(5) of the PAA, where an adult appoints multiple attorneys for all or part of the same area of authority, the attorneys must act unanimously in exercising their authority. The exception to this rule is where the adult specifically does the following in the POA: | According to s 18(5) of the PAA, where an adult appoints multiple attorneys for all or part of the same area of authority, the attorneys must act unanimously in exercising their authority. The exception to this rule is where the adult specifically does the following in the POA: | ||
• Describes circumstances where the attorneys do not have to act unanimously | • Describes circumstances where the attorneys do not have to act unanimously <br> | ||
• Sets out how a conflict between attorneys is to be resolved | • Sets out how a conflict between attorneys is to be resolved<br> | ||
• Authorizes an attorney to act only as an alternate and sets out: | • Authorizes an attorney to act only as an alternate and sets out: <br> | ||
o (i) The circumstances in which the alternate is authorized to act in place of the attorney, for example, if the attorney is unwilling to act, dies or is for any other reason unable to act, and | o (i) The circumstances in which the alternate is authorized to act in place of the attorney, for example, if the attorney is unwilling to act, dies or is for any other reason unable to act, and <br> | ||
o (ii) The limits or conditions if any, on the exercise of authority by the alternate. | o (ii) The limits or conditions if any, on the exercise of authority by the alternate.<br> | ||
Where a POA appoints two or more attorneys to act for an adult, all the attorneys will need to be in agreement regarding decisions made for the adult, '''unless otherwise specified in the POA'''. | Where a POA appoints two or more attorneys to act for an adult, all the attorneys will need to be in agreement regarding decisions made for the adult, '''unless otherwise specified in the POA'''. | ||
Appointing more than one person has potential advantages and disadvantages. The practice can reduce the potential for an attorney to misuse their power by providing built-in scrutiny by a second attorney. However, having multiple attorneys may make the decision-making process complicated and inefficient. | Appointing more than one person has potential advantages and disadvantages. The practice can reduce the potential for an attorney to misuse their power by providing built-in scrutiny by a second attorney. However, having multiple attorneys may make the decision-making process complicated and inefficient. | ||
==== e) The Public Guardian and Trustee (PGT) ==== | ==== e) The Public Guardian and Trustee (PGT) ==== | ||