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

A Power of Attorney (POA) is a legally binding document that allows a capable adult (called the ‘adult’) to grant the authority to other capable adult(s) (called the ‘attorney(s)’) to make financial and legal decisions on their behalf.

There are two types of POAs.  It is important to find out what type of POA would best suit the adult’s needs.  The first is governed by Part 1 of the PAA, and is sometimes called a ‘General POA’. The second is governed by Parts 2 and 3 of the PAA, and is sometimes called an ‘Enduring POA’. The key difference between the two is that a POA under Part 1 ends once the adult becomes incapable, while a POA under Parts 2 and 3 continues even when the adult becomes incapable.  Questions to ask include:  

# General: General POAs are governed by Part 1 of the PAA, and by common law for agency relationships.  They are effective immediately, or as specified on the document, and ongoing until the loss of capacity, revocation or death.  The test for capacity for making general POAs can be found in the BCLI’s Report on Common Law Test of Capacity: http://www.bcli.org/wordpress/wp-content/uploads/2013/09/2013-09-24_BCLI_Report_on_Common-law_Tests_of_Capacity_FINAL. General POAs are rarely used in incapacity planning, as they become no longer in effect when an adult becomes incapable (which is often when a POA is most needed).  

EPOAs can be effective immediately, or ‘springing’. A ‘springing’ EPOA stays dormant until a future date or event (i.e. the loss of capacity) and ends only upon death.  The adult can decide in advance how capacity is to be determined, such as by requiring the agreement of a family member and two doctors.  A springing EPOA is not active until the adult loses capacity.  

Unless otherwise specified, all usage of the term ‘POA’ in the subsequent sections of this chapter refers to an Enduring Power of Attorney as governed by Part 2 of the PAA.

The ‘adult’ is any adult who makes a POA to appoint an attorney to make financial decisions on their behalf.  The adult must be (PAA s10 and 12):

An adult is presumed to be capable of making decisions about their financial affairs and of understanding the nature and consequences of making, changing or revoking an enduring POA (section 11 PAA).   

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):  

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.<br>

o Exception: if the individual is a child, parent or spouse of the adult, in which case they may be named as attorney<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 <br>

o (ii) The limits or conditions if any, on the exercise of authority by the alternate.<br>  

An adult who does not have relatives or friends who are willing and able to serve as an attorney may ask the PGT to consider acting as an attorney in the event of incapacity.  According to s 6(c) and s 23 of the PGTA, the PGT may agree to act as attorney for a fee.  If an adult needs to appoint the PGT as attorney, contact the Public Guardian and Trustee. It is important to note that the PGT will only act as a representative in matters of finance and will not be able to act as a representative for health care decisions.

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:  

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).  

'''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.

• 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>

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<br>

o With the person<br>

o At the person’s address<br>

o With an adult who appears to reside with the person<br>

o If the person operates a business, at the business, with an employee of the person<br>

o By transmitting it by fax to the person with the number they provided for notification purposes<br>