When you give someone power of attorney you give that person the legal power to take care of financial and legal matters for you. This may include paying bills, depositing or withdrawing money from your bank account, investing your money or selling your house. A power of attorney does not give your attorney authority to make decisions about your health care. It covers financial and legal matters only.
There may be a number of reasons why people would need to make a power of attorney. One reason is because they are physically unable to look after their affairs due to travel or injury. Another reason people often make a power of attorney is in case they become “mentally incapable” due to illness or accident. A power of attorney is a simple way to plan ahead and choose who will help you with your finances and legal matters. If, for example, a person becomes “mentally incapable” and does not have a power of attorney, the person’s family members may have to go to court to get the legal right to manage his or her affairs. Therefore, many people make an enduring power of attorney to plan ahead in case they become “mentally incapable.”
A general power of attorney gives your attorney the power to do anything financial or legal that you can do for yourself. This could include dealing with bank accounts, obtaining information from CRA in order to do your income tax, insuring or selling your car, or selling your real estate. Alternatively, you may want to limit your attorney’s powers by making a power of attorney only for a specific task. For example, you can give someone power of attorney to sell a particular piece of property or you can give them powers for a limited period of time.
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:
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.
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:
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.