Power of Attorney

The following is intended as a guideline of responsibilities for an “Attorney” (not a legal professional) under the Power of Attorney. The person who has granted the Power of Attorney is called the Adult (formerly referred to as the donor). Once you sign the Power of Attorney document as an appointed Attorney of the Adult, you have a duty to act when it becomes apparent to you that the Adult needs assistance. The Power of Attorney can only be used while the adult is alive. When the adult dies his Power of Attorney becomes invalid.

To use the Power of Attorney document, you must show the original (or a certified copy) to the institution or organization—for example, the bank, Motor Vehicle Office, Municipal Office (for the Homeowner’s Grant)—so you can sign on behalf of the Adult. You may allow the organization to make a copy, if required. Instruct the recipient that the original must be returned to you. Should you need to use the document for purpose of real estate transfer, the Land Title Office will require the original Power of Attorney to be registered.

When you sign any documents on behalf of the Adult, it is important that you keep a detailed record of everything you do. You are accountable to the Adult, the family, the courts, and/or the BC Public Guardian and Trustee regarding your management of the Adult’s affairs. Make an accurate and detailed list of assets taken under your responsibility at the start date.
When acting as an Attorney, you must:

• Keep all accounts and property separate from your own (unless you are a joint tenant).
• Record all funds received and expenses paid.
• Prepare an annual summary of accounts, reconciling opening and closing balances for each bank account.
• Ensure tax returns are prepared on time and make adequate installment payments. Confirm all entitled income is being collected.
• Pay property taxes, strata fees, and claim the Homeowner Grant, if applicable.
• Apply for benefits to which the Adult may be entitled.
• Ensure that home, life and auto insurance is current
• Give priority to the adult’s personal and health care needs.
• Reimburse yourself only for items you purchased for the sole benefit of the Adult. For example, you can reimburse yourself for related expenses such as ferry fares, gas, and long-distance charges you have incurred while acting in your capacity as Attorney. You should keep all receipts to back up these expenses.
• Remember your responsibility is to the Adult and not his/her dependents; you have no powers beyond those specified in the document.

• Do NOT incur new debts without a clear plan as to both the benefit to the Adult and the means of repaying the debt from the current income sources. For example, a loan to improve accessibility to the home so the Adult can remain at home longer, provided the Adult’s income will comfortably cover the payments.
• DO NOT take a fee for your services unless it is clearly authorized in the Power of Attorney document.
• DO NOT make any loans or make distributions to family members, even if everyone agrees to it, unless it is clearly authorized in the Power of Attorney.
• DO NOT borrow funds or accept gifts from the Adult unless it is clearly authorized in the Power of Attorney.
• DO NOT convert the Adult’s assets to your name or use the Power of Attorney for your personal gain, unless it is clearly authorized in the Power of Attorney.
• DO NOT dispose of the Adult’s personal effects, if it is practical to store them, unless you have permission from the Adult or the Power of Attorney document allows you to do so.

Please note that the Attorney is not obligated to act until he/she signs the document. For this reason, the Adult/Donor may wish to name two attorneys.

• Once the document is signed, the attorney has a duty to act when requested, required, or when it becomes prudent to do so.
• If the attorney cannot act when required, he/she must resign in the manner prescribed in Sec. 25; If the attorney has not signed the document, he/she has no legal obligation to give notice as to whether he/she cannot act (but it would be prudent to do so in any case).
• Once the attorney begins to act, he/she has a fiduciary responsibility to the Adult (a higher standard of care is required of a professional attorney).
• The attorney should make inquiries about the Adult’s current will and other testamentary documents so that he/she does not inadvertently dispose of a gift named in the Will or Memorandum.
• The attorney cannot act as attorney if he/she is receiving compensation from the adult for personal or health care, unless the attorney is a spouse, child or parent of the Adult.
• The attorney’s authority to act ends if the attorney becomes bankrupt.

The Adult may revoke the Power of Attorney at any time, provided that the Adult has the necessary mental capacity to do so. Should he or she do so, you must not use the Power of Attorney document after you have been made aware that it has been revoked. Until the contrary is demonstrated, an Adult is presumed to be capable of making decisions about his or her own financial affairs, and understanding the nature and consequences of making, changing, or revoking an Enduring Power of Attorney. If you are in doubt about the Adult’s capacity to revoke a Power of Attorney, you should refrain from using it until a medical assessment is done to prove capacity one way or the other.

The original Power of Attorney document should be kept in a safe location; the Attorney needs to be aware of the location and it must be accessible to him or her. For example, if it is locked in a safety deposit box, and the Attorney does not have access to the box, the document will be of no use.

If you have been appointed, make sure you have the information and legal authority to obtain the document when needed, or ask the Adult for a certified copy and clarify where the original is kept.

Remember, the Power of Attorney is for financial and legal matters only and does not include health care decisions. The Adult should be encouraged to make a Representation Agreement for health care and personal care decisions.

An enduring power of attorney must be in writing and signed and dated by the adult in the presence of 2 witnesses, and both witnesses in the presence of the adult. It may be signed on behalf of an adult if the adult is physically incapable of signing the enduring power of attorney, the adult is present and directs that the enduring power of attorney be signed, and the signature of the person signing the enduring power of attorney on behalf of the adult is witnessed accordingly, as if that signature were the adult’s signature.

The following persons must not sign an enduring power of attorney on behalf of an adult:

• a witness to the signing of the enduring power of attorney;
• a person prohibited from acting as a witness.

Only one witness is required if the witness is a lawyer or a Notary Public. If an enduring power of attorney is to be effective for the purposes of the Land Title Act, the enduring power of attorney must be executed and witnessed in accordance with the Land Title Act requirements.