Difference between revisions of "Powers of Attorney and Representation Agreements"
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=More information= | =More information= | ||
*The Nidus Personal Planning Resource Centre & Registry has detailed information on all aspects of both enduring powers of attorney and representations agreements, including fact sheets, forms, and videos. | *The [http://www.nidus.ca/ Nidus Personal Planning Resource Centre & Registry] has detailed information on all aspects of both enduring powers of attorney and representations agreements, including fact sheets, forms, and videos. | ||
*The Public Guardian and Trustee of British Columbia at 604.660.4444. | *The [http://www.trustee.bc.ca/ Public Guardian and Trustee of British Columbia] at 604.660.4444. | ||
*Script 426 on Committeeship explains what happens if you become mentally incapable and have not done any personal planning. | *Script 426 on Committeeship explains what happens if you become mentally incapable and have not done any personal planning. | ||
*Script 428 on Adults and Consent to Health Care has more on advance directives and temporary substitute decision-makers if you become incapable. | *Script [[Adults and Consent to Health Care (Script 428)|428]] on ''Adults and Consent to Health Care'' has more on advance directives and temporary substitute decision-makers if you become incapable. | ||
*Scripts 176 to 179 deal with the third part of personal planning: wills. The other two parts are enduring powers of attorney and representation agreements. | *Scripts 176 to 179 deal with the third part of personal planning: '''wills'''. The other two parts are '''enduring powers of attorney''' and '''representation agreements'''. | ||
[updated April 2017] | |||
'''The above was last reviewed for accuracy by Hugh McLellan and Joanne Taylor, Executive Director and Registrar of Nidus, and edited by John Blois.''' | |||
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Revision as of 23:57, 13 April 2017
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Dial-A-Law features free information on the law in British Columbia in over 130 topic areas. A service of People's Law School, Dial-A-Law is available on Clicklaw Wikibooks, its own website at dialalaw.ca, and on the telephone at 1-800-565-5297. |
This script explains powers of attorney, enduring powers of attorney, and representation agreements. These documents help with personal planning, which involves:
- legal and financial decisions, under a power of attorney (this script 180)
- legal and financial decisions if a person becomes mentally incapable, under an enduring power of attorney (this script 180)
- personal care and health care decisions if a person becomes mentally incapable, under a representation agreement (this script 180)
For information on what happens if a person becomes mentally incapable and has not done any personal planning, see script 426 on committeeship. For information on wills (the third part of personal planning), see scripts 176 - 179.
Power of attorney
What is a power of attorney?
A power of attorney is a document that a person uses to appoint another person, called an attorney, to make financial and legal decisions for them. Under the Power of Attorney Act, you must be a capable adult (at least 19 years old) to appoint an attorney. A power of attorney ends automatically if you become mentally incapable or die. Capable means you understand the nature and effect of the document when you make it. The Act presumes you are capable unless it’s shown you’re not.
One example of when you could use this document: if you are going out of the country for a while and you want someone here to deal with your bank accounts.
Who should you appoint as your attorney?
The attorney is usually a family member or friend. You should appoint someone you trust because you’re giving them a lot of power. If you appoint someone who is not an adult, they cannot act as attorney until they become an adult. It could also be a professional, such as your lawyer of accountant or a trust company.
Revoking (ending) a power of attorney
A power of attorney ends automatically when you die or if you become mentally incapable.
You can end a power of attorney by giving your attorney a written notice saying that their power has ended. Then you should also destroy all originals and duplicates of the document (to prevent misuse by the attorney). And give written notice that the power of attorney has ended to any financial institutions or other third parties where your attorney may have acted for you.
You can also put an end-date in the document, or explain circumstances when it will end, for example, when you return home.
To end a power of attorney dealing with land, you must file a document called a “Notice of Revocation” in the Land Title Office where the land is registered.
Enduring power of attorney
What is an enduring power of attorney?
An enduring power of attorney is a document that a capable adult (at least 19 years old) uses to appoint another person, called an attorney, to make financial and legal decisions for them. It continues (or endures) if the adult becomes mentally incapable. In contrast, a power of attorney ends if the adult becomes mentally incapable. An enduring power of attorney must say whether the attorney may exercise authority while the adult is capable and later if the adult becomes incapable, or only while the adult is incapable. It must also say that the authority continues despite the adult’s incapability.
Section 11 of the Power of Attorney Act says that adults are presumed to be capable of making decisions about their financial affairs and understanding the nature and consequences of making, changing, or revoking an enduring power of attorney (unless it’s shown otherwise). It also explains that an adult is incapable if they cannot understand all 6 listed items.
Why make an enduring power of attorney?
With an enduring power of attorney, you decide who will look after your legal and financial affairs if you become incapable. Without an enduring power of attorney, if you become incapable, someone (such as your spouse or other family member) may have to apply to BC Supreme Court to be appointed your committee of estate (explained in script 426) to look after your legal and financial affairs. You have more control if you make an enduring power of attorney. And it costs much less than going to court to appoint a committee.
Who can you appoint in an enduring power of attorney?
You should appoint someone you trust because you’re giving them a lot of power. Usually it’s a spouse, family member, or friend. Or it could be a professional such as your lawyer or accountant, or a trust company. You cannot appoint anyone who is paid to give you personal or health care services or who works at a facility where you receive personal or health care services, unless that person is your child, parent, or spouse.
Can you appoint more than one attorney?
Yes, you can appoint more than one attorney, with different, or the same, authority. If they have the same authority, they must act unanimously unless the document says they don’t need to or explains how they must resolve conflicts. Or if one of them is an alternate, and you explain when they may act.
Rules for signing and witnessing an enduring power of attorney
Under section 16, you must sign the enduring power of attorney in front of one adult witness if they are a BC lawyer or notary public (who is a member of the Society of Notaries Public of BC). Otherwise you need 2 adult witnesses. They must sign it in front of you and each other. Certain people cannot be witnesses, as [www.bclaws.ca/civix/document/id/complete/statreg/96370_01#section16 section 16] explains. They include your attorney, and the spouse, child, parent, employee, and agent of the attorney.
Under section 17, the attorney must sign the enduring power of attorney in front of one adult witness if they are a BC lawyer or BC notary public. Otherwise the attorney needs 2 adult witnesses. Certain people cannot be witnesses: your attorney, their spouse, child, parent, employee, or agent.
What are the duties of an attorney under an enduring power of attorney?
Section 19 of the Act sets out the duties of an attorney under an enduring power of attorney. They include the duty to:
- act honestly and in good faith
- exercise the care, diligence, and skill of a reasonably prudent person
- act within the authority given in the enduring power of attorney
- keep proper records for inspection and copying
- act in the adult's best interests, taking into account the adult's current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney
- give priority when managing the adult's financial affairs to meeting the personal care and health care needs of the adult
- invest the adult's property only under the Trustee Act, unless otherwise stated
- foster the independence of the adult and encourage the adult's involvement in any decision-making that affects the adult
- not dispose of any property that the attorney knows is specifically gifted in your Will, unless it’s necessary to comply with their duties
- keep the adult’s assets separate from the attorney's assets
Revoking (ending) an enduring power of attorney
Under section 28, you can revoke an enduring power of attorney unless you’re incapable. When you make the document, you can add other ways to revoke it.
- becomes bankrupt
- is your spouse (either married or common-law) and your marriage or marriage-like relationship ends, unless the document says that the authority continues regardless of whether your marriage or marriage-like relationship ends
- is a corporation and the corporation dissolves, winds up, or ceases to carry on business
- is convicted of an offence under the Power of Attorney Act or an offence where you were the victim
Under section 30, an enduring power of attorney is suspended or ends in several cases, including when you die, or if you have a statutory property guardian (when the Public Guardian and Trustee takes over management of your financial and legal affairs under a Certificate of Incapability), or if a court terminates it.
To revoke a power of attorney dealing with land, you must file a document called a “Notice of Revocation” in the Land Title Office where the land is registered.
Information for both power of attorney and enduring power of attorney
Does the person you appoint have to act as your attorney? No. A person can refuse to act as your attorney.
What decisions can an attorney make? An attorney can make most financial and legal decisions. An attorney cannot make personal or health care decisions for you. For these decisions, you need a representation agreement.
Specific or general power You can give your attorney very limited power, for example, give your daughter a power of attorney only to cash your pension cheques for you. Or you can give someone very broad power to deal with all your financial and legal affairs.
Power of attorney for real estate A power of attorney for real estate has to be filed with the Land Title Office. Under Part 6 of the Land Title Act, it is valid for only three years from the date of signing, unless it says otherwise, or unless it is an enduring power of attorney.
To revoke a power of attorney, or an enduring power of attorney, dealing with land, you must file a document called a “Notice of Revocation” in the Land Title Office where the land is registered.
Power of Attorney Act updated in September 2011 The Power of Attorney Act was updated on September 1, 2011. A power of attorney, or an enduring power of attorney, signed before then will generally still be valid, but it’s a good idea to have a lawyer review it.
Do you need a lawyer to make a power of attorney or an enduring power of attorney? No, but you should use a lawyer who specializes in this area of law because it’s complex.
Can you register these documents somewhere? At the Nidus Personal Planning Resource Centre & Registry, you can register enduring powers of attorney. Hospitals, banks, and government services can search there to find out who your attorney is.
Representation agreement
What is a representation agreement?
A representation agreement is a document that a capable adult (at least 19 years old) uses to appoint another adult, called a representative, to help them make, or to make, personal and health care decisions if they cannot make these decisions on their own. An agreement under section 7 can also allow a representative to deal with routine management of financial affairs. But a representative agreement cannot authorize medical assistance in dying.
Why make a representation agreement?
With a representation agreement, you have a say in who will make personal and health care decisions for you if you become incapable. You may be able to reduce the burden on your family and friends. And you can avoid the government being involved in your personal and health care decisions.
Who can be a representative?
The representative is usually a spouse or other family member or friend. Under section 5 of the Representation Agreement Act, you can appoint any adult (at least 19 years old) except not a person who is compensated (paid) to give you personal or health care services or who is an employee of a facility where you live and receive personal or health care services, unless that person is your child, parent or spouse. You cannot appoint a trust company to be your representative for personal and health care decisions.
Can you appoint more than one representative? Under section 6 of the Representation Agreement Act, you can appoint more than one representative and give them the same or different authority. If they have the same authority, they have to act unanimously unless the agreement says otherwise. You can also appoint an alternate representative. Then you also have to say when they can act in place of the representative.
Does the person you appoint have to act as your representative?
No. A person can refuse to act as your representative.
Rules for signing and witnessing a representation agreement
Under section 13, you must sign the representation agreement in front of one adult witness if they are a lawyer or notary public who is a member of the Society of Notaries Public of BC. Otherwise you need 2 adult witnesses. Each representative must sign the document. Certain people cannot be witnesses, as section 13 explains. They include your representative (and alternate representative) and the spouse, child, parent, employee, and agent of your representative (and alternate representative).
What are the duties of a representative?
Your representative must consult with you, as much as is reasonable, to determine your wishes. Some of the other duties of representatives under section 16 of the Representation Agreement Act include the duty to:
- act honestly and in good faith
- exercise the care, diligence, and skill of a reasonably prudent person
- act within the authority granted by the representation agreement
- keep your assets separate from the representative's assets
- keep proper records including creating and maintaining a list of your property and liabilities
When helping you to make decisions or making decisions for you, a representative must do the following, in the following order:
- determine and comply with your current wishes
- comply with the wishes you expressed when you were capable
- act based on your known beliefs and values if your wishes are not known
- act in your best interests if your beliefs and values are not known
Monitor required in some cases
Under section 12, if your representation agreement deals with routine management of your financial affairs, you need an extra safeguard: you must name a monitor, unless your representative is your spouse, the Public Guardian and Trustee, a trust company, or a credit union. Or unless you name 2 or more representatives to deal with these financial affairs and require them to act unanimously.
Two types of representation agreement under Representation Agreement Act
- Section 7 deals with standard provisions for routine management of financial affairs, legal services, personal care, and minor and major health care. Section 8 has a test of incapacity for using standard provisions. An adult may make a representation agreement using standard provisions even if they cannot make a contract or make decisions independently.
- Section 9 deals with non-standard representation agreements for all personal care and health care matters. Section 10 says that to make this type of agreement, you must understand the nature and consequences of the document when you make it. Under this type of agreement, you can give general or specific powers. A representative with general powers can give or refuse consent to health care, including health care necessary to preserve life.
Conflict with enduring power of attorney
If:
- your representation agreement includes routine management of financial affairs, and
- you also have an enduring power of attorney (explained above) dealing with your financial affairs, and
- the 2 documents overlap and conflict,
then the enduring power of attorney governs.
Revoking or changing a representation agreement
Under section 27, to revoke a representation agreement, you have to give written notice to the representative and alternate representative and monitor. Under section 28, the parts dealing with routine financial affairs are automatically cancelled if you or the representative become bankrupt or if the representative is convicted of an offence involving dishonesty, and in certain other cases. And under section 29, a representation agreement ends in certain cases including if you or the representative die or if the representative becomes incapable.
Representation Agreement Act updated in September 2011
The Representation Agreement Act was updated on September 1, 2011. Representation agreements signed before then will generally still be valid. But any representation agreements signed on or after September 1, 2011 must follow the updated law.
Do you need a lawyer to make a representation agreement?
No, but you should use a lawyer who specializes in this area of law because it’s complex.
Where can you register these documents?
You can register enduring powers of attorney and representation agreements at the Nidus Personal Planning Resource Centre & Registry. Hospitals, banks, and government agencies can search there to find out who your attorney or representative is if they need to.
More information
- The Nidus Personal Planning Resource Centre & Registry has detailed information on all aspects of both enduring powers of attorney and representations agreements, including fact sheets, forms, and videos.
- The Public Guardian and Trustee of British Columbia at 604.660.4444.
- Script 426 on Committeeship explains what happens if you become mentally incapable and have not done any personal planning.
- Script 428 on Adults and Consent to Health Care has more on advance directives and temporary substitute decision-makers if you become incapable.
- Scripts 176 to 179 deal with the third part of personal planning: wills. The other two parts are enduring powers of attorney and representation agreements.
[updated April 2017]
The above was last reviewed for accuracy by Hugh McLellan and Joanne Taylor, Executive Director and Registrar of Nidus, and edited by John Blois.
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