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

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==== a) Duties ====
==== 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:
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
• Act honestly and in good faith<br>
• Exercise the care, diligence and skill of a reasonably prudent person
• Exercise the care, diligence and skill of a reasonably prudent person<br>
• Act within the authority given in the POA
• Act within the authority given in the POA<br>
• Keep prescribed records and produce these records for inspection and copying upon request  
• Keep prescribed records and produce these records for inspection and copying upon request <br>
 
 
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)).  
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)).  
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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:
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'']
• Only invest the adult’s property in accordance with the ''Trustee Act'', RSBC 1996, c 464 [''TA'']<br>
• '''Not''' dispose of property that is subject to a specific testamentary gift in an adult’s will
• '''Not''' dispose of property that is subject to a specific testamentary gift in an adult’s will<br>
• Keep the adult’s personal effects at the disposal of the adult
• Keep the adult’s personal effects at the disposal of the adult<br>


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.  
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.  
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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:  
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)
• Make a gift or loan, or charitable gift, if the POA permits or certain conditions set out in the ''PAA'' are met (see below)<br>
• Receive a gift or loan, if the POA permits
• Receive a gift or loan, if the POA permits<br>
• Retain the services of a qualified person to assist the attorney
• Retain the services of a qualified person to assist the attorney<br>
• Change or make a beneficiary designation, in limited circumstances (see below)
• Change or make a beneficiary designation, in limited circumstances (see below)<br>


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 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
• The attorney acts when the authority of the attorney is suspended or has ended<br>
• Or the EPOA is not in effect, is suspended, terminated or invalid   
• Or the EPOA is not in effect, is suspended, terminated or invalid  <br>


==== c) Gifts, Loans and Charitable Donations ====
==== 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):  
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 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<br>
• The adult, when capable, made gifts or loans, or charitable gifts, of that nature; and
• 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'')
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'')<br>


According to s 20(2) of the ''PAA'', an attorney may receive a gift or loan, if the EPOA permits.   
According to s 20(2) of the ''PAA'', an attorney may receive a gift or loan, if the EPOA permits.   
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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:
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
• A change to a beneficiary designation if the court authorizes the change<br>
• The creation of a new beneficiary designation if the designation is made in
• The creation of a new beneficiary designation if the designation is made in<br>
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 An instrument that is renewing, replacing or converting a similar instrument made by the capable adult, and the designated beneficiary remains the same<br>
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
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<br>


==== e) Deeds ====
==== e) Deeds ====
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==== g) Liability ====
==== 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):
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):<br>
• The statutory duties of the attorney as set out in s 19 of the ''PAA''
• The statutory duties of the attorney as set out in s 19 of the ''PAA''<br>
• Any directions given by the court under s 36(1)(a) of the ''PAA''
• Any directions given by the court under s 36(1)(a) of the ''PAA''<br>
• Any other duty that may be imposed by law
• Any other duty that may be imposed by law<br>


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.  
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.  
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==== i) Expenses and Remuneration ====
==== 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.  
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 ===
=== 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''):  
A POA will be suspended or end in the following circumstances (see s 29(2) of the ''PAA''):  
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