Difference between revisions of "Enduring Power of Attorney"
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=== Who can you appoint as your attorney? === | === Who can you appoint as your attorney? === | ||
As with a general power of attorney, most people making an enduring power of attorney appoint a spouse, family member or friend as their attorney. | As with a general power of attorney, most people making an enduring power of attorney appoint a spouse, family member or friend as their attorney. | ||
As with a general power of attorney, the law has two restrictions on who can be appointed as an attorney under an enduring power of attorney. You cannot appoint: | |||
* A caregiver who is paid to provide you with personal or health care services. | |||
* An employee at a facility where you live if the facility provides health or personal care services. | |||
These restrictions do not apply if the person providing the care is your child, parent or spouse. | |||
=== Should you see a notary public or lawyer? === | === Should you see a notary public or lawyer? === | ||
Revision as of 21:22, 9 April 2017
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kevin Smith in March 2017. |
What is an enduring power of attorney?
An enduring power of attorney allows you to appoint someone to make financial and legal decisions for you in case you become mentally incapable because of age, accident or illness. An enduring power of attorney does not stop you from managing your own affairs as long as you are capable of making your own decisions.
The key difference between an enduring power of attorney and a general power of attorney has to do with when they are in effect. Only an enduring power of attorney can be in effect when you are mentally incapable.
Why is it important to have an enduring power of attorney?
Suppose you become unable to make decisions because of an accident. If you have an enduring power of attorney, your attorney can make financial and legal decisions on your behalf. If not, the courts may have to decide. Nobody, not even a spouse, has legal authority over an adult’s financial or legal affairs.
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"My wife Susan is the owner of our second car. If she becomes mentally incapable, I learned I wouldn't have the legal authority to sell the car. So she made an enduring power of attorney appointing me as her attorney. That gives me the legal authority to sell the car if Susan becomes mentally incapable." - George, Nelson |
By making an enduring power of attorney, you can appoint someone else to make decisions regarding your finances and property in case you become mentally incapable.
What does an enduring power of attorney cover?
An enduring power of attorney covers financial and legal decisions. Your attorney cannot make health care or personal care decisions for you, such as consenting to surgery or dental work for you. To appoint someone to make health care or personal care decisions on your behalf, you can make a representation agreement.
An enduring power of attorney may be limited to dealing with specific matters, such as managing a specific bank account. It may also be limited to a specific time period.
Making an enduring power of attorney
Who can make an enduring power of attorney?
You may make an enduring power of attorney if you are 19 years of age or older, and are capable of making decisions. The law presumes you are capable unless it is shown that you are not. The way you communicate is not a factor in deciding whether you are capable.
The Power of Attorney Act says you must understand the nature and consequences of all of these six factors, or you are considered incapable of making an enduring power of attorney:
- the property you have and its approximate value,
- the obligations you owe to your dependants,
- that your attorney will be able to do on your behalf anything in respect of property that you could do if capable, except make a will,
- that the value of your business and property may decline if your attorney fails to manage them prudently,
- that the attorney might misuse their authority, and
- that you may, if capable, revoke the enduring power of attorney.
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"Suffering from Alzheimer’s disease, my client Elizabeth is not able to recall what she owns - her bank accounts, vehicles, real estate, and so on. She would be considered incapable of making an enduring power of attorney. However, she may still be capable of making a ‘section 7 representation agreement’." - Sylvia, Lawyer, Kelowna |
Who can you appoint as your attorney?
As with a general power of attorney, most people making an enduring power of attorney appoint a spouse, family member or friend as their attorney.
As with a general power of attorney, the law has two restrictions on who can be appointed as an attorney under an enduring power of attorney. You cannot appoint:
- A caregiver who is paid to provide you with personal or health care services.
- An employee at a facility where you live if the facility provides health or personal care services.
These restrictions do not apply if the person providing the care is your child, parent or spouse.
Should you see a notary public or lawyer?
It is a good idea to go to a lawyer or notary public to make an enduring power of attorney. You can talk with a lawyer or notary public about what your attorney can do.
A notary public or lawyer can help you with rules about the gifts, loans and donations an attorney can make on your behalf.
What do you need to know about signing the documents?
You must sign the enduring power of attorney and have the signing witnessed. You need only one witness if you use a notary public or a lawyer. Any attorney appointed after September 1, 2011 must also sign the enduring power of attorney document in front of witnesses before they can act. You and your attorney do not have to sign at the same time.
When does an enduring power of attorney take effect?
An enduring power of attorney usually takes effect as soon as you and your attorney sign the documents. You can continue to manage your financial and legal affairs for as long as you are capable. But your attorney can help you with any complicated matters. An enduring power of attorney can also take effect at a specified time you name in the document.
Is an enduring power of attorney made in one province okay in another?
The Power of Attorney Act and the Regulation under the Act have some provisions relating to enduring powers of attorney made outside British Columbia. You should ask a lawyer or notary how those provisions affect the enduring power of attorney in your situation.
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 Power of Attorney © People's Law School is, except for the images, licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence.
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