Powers of Attorney and Representation Agreements

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 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.

The authority of an attorney is suspended or ends in several cases listed in section 29 of the Act, including if the attorney: • 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: 1. determine and comply with your current wishes 2. comply with the wishes you expressed when you were capable 3. act based on your known beliefs and values if your wishes are not known 4. 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.

This script discusses powers of attorney, enduring powers of attorney and representation agreements, starting with powers of attorney.

What is a power of attorney?

A power of attorney is a document that appoints another person, called an “attorney”, to deal with your business and property and to make financial and legal decisions for you. The word “attorney“ is used in the United States for a lawyer. The word “attorney” here means “one who is appointed and authorized to act in the place of another person”.

BC has a new Power of Attorney Act

A new Power of Attorney Act came into effect in BC on September 1, 2011. It brought in many new changes relating to “enduring powers of attorney” (discussed later in this script). Powers of attorney signed before September 1, 2011 will generally still be valid, but since the new Power of Attorney Act brought in many changes, it’s a good idea to have a lawyer review your power(s) of attorney to ensure they are still valid and will do what you need them to do. Any powers of attorney signed on or after September 1, 2011 must follow all the new laws.

A power of attorney can be very specific

For example, you may give your daughter a power of attorney just to cash your old age security pension cheques for you. In fact, you can get power of attorney forms for cashing these cheques at your local federal Service Canada office. Your bank can also give you a form if you need a power of attorney for a specific bank account.

A power of attorney can also be very general

If you wish, you can give your attorney very wide powers to deal with all of your assets.

There are specific rules for powers of attorney dealing with real estate

The Land Title Act requires the attorney to do certain things and follow certain procedures, and there are certain rules that apply. For example, a power of attorney dealing with real estate is only valid for three years from the date of signing, unless otherwise specified, or unless it is an enduring power of attorney as described in the Power of Attorney Act, which has been filed in the Land Title registry in accordance with the Land Title Act. You can get a copy of the Land Title Act at your local library or find it on the government’s legislation website at www.bclaws.ca.

If you travel to the United States on a regular basis (Canadian “snow bird”), you may want to have a power of attorney. Because real estate involves large amounts of money, you should consult a lawyer for real estate transactions rather than doing it yourself.

Who should you appoint as your attorney?

Consider carefully who to appoint as your attorney and the powers you want to give. You cannot appoint anyone who is paid to provide you with personal or health care or who works at a facility through which you receive personal or health care, unless that person is your child, parent or spouse. It’s important that you trust the person’s honesty and judgment. If you have no family member or friend that you can or want to appoint, you can appoint a respected professional such as your lawyer, accountant or trust company. As a power of attorney gives your attorney very broad power, it can cause a lot of harm if misused.

Can you appoint more than one attorney?

You can appoint more than one person as your attorney, either in the same document or in different documents. If you appoint more than one attorney in the same document, the document should specify how the attorneys must act (for example, must act unanimously or by majority decision). If one or more attorney(s) is unable or unwilling to act, the remaining attorney(s) can continue to act. If you don’t want the remaining attorney(s) to be able to continue to act, you should specifically state this in the document(s).

Does the person you appoint have to act as your attorney?

No. Merely granting a power of attorney to someone (and even delivering the written document to them) doesn’t mean that this person has to act as your attorney if they don’t want to. The attorney doesn’t have to take any specific steps to say “no”, or to later decline to act if they no longer wish to be the attorney.

How do you end a power of attorney?

The most effective way to terminate a power of attorney is to give your attorney a written notice saying that their power has ended, and preferably also to destroy all originals or duplicates of the document (to prevent misuse by the terminated attorney). To cancel or 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. The court can also terminate a power of attorney – this might happen if your attorney abuses their power. It’s also possible to put an end-date, or include circumstances in which the power of attorney will end, in the document itself.

A power of attorney automatically ends in certain circumstances

A power of attorney automatically ends when you die or if you become bankrupt. It also ends if you become mentally incompetent, unless the power of attorney explicitly mentions that the power should continue after your having become incompetent. This is called an “enduring power of attorney”.

What is an enduring power of attorney?

An enduring power of attorney allows your attorney to make the necessary financial and legal decisions for you if you become mentally incapable because of age, accident or illness. To make a valid enduring power of attorney, the document must specify whether the attorney can exercise authority only while you are capable or only while you are incapable (or both). The document must also state that your attorney's authority will continue even if you’re no longer able to make decisions for yourself.

There are different rules for enduring powers of attorney than for non-enduring ones

For example, for enduring powers of attorney, if you appoint more than one attorney in different documents, the appointed attorneys must act together unanimously, unless the documents describe when the attorneys don’t have to act unanimously or set out how a conflict between the attorneys is to be resolved.

Also, if your attorney has signed the enduring power of attorney and the attorney no longer wishes to be the attorney, the attorney must give written notice of their resignation to you and any other attorneys named in the document. If you are mentally incapable at that time, the attorney must also give written notice of their resignation to your spouse, near relative or close friend.

How do you end an enduring power of attorney?

To terminate or change an enduring power of attorney, you must give written notice of the termination or change to your attorney(s). It’s also important to give written notice of the termination to any financial institutions or other third parties where your attorney may have previously used the enduring power of attorney to act on your behalf.

Also, the Power of Attorney Act sets out additional circumstances under which an enduring power of attorney automatically ends, such as:

• if the attorney becomes bankrupt
• if the attorney is your spouse (either married or common-law) and your marriage or marriage-like relationship ends, unless the document specifically says that the power of attorney will continue to be in effect if your marriage or marriage-like relationship ends
• if the attorney is a corporation and the corporation is dissolved or winded up
• if the attorney is convicted of an offence described in the Power of Attorney Act or an offence where you were the victim

There are specific new rules for signing an enduring power of attorney

An enduring power of attorney must be signed and dated by you in front of two adult witnesses at the same time (only one witness is needed if the witness is a lawyer or notary public). Neither your appointed attorney nor the spouse, child, parent or an employee/agent of the appointed attorney can act as a witness.

Also, before an appointed attorney can start to exercise any authority granted to them under an enduring power of attorney, the appointed person must sign and date the document in front of two witnesses (only one is required if the witness is a lawyer or notary public). The attorney doesn’t need to sign in front of you or any other appointed attorneys (if more than one attorney is appointed). But the same witness rules for your signing apply to the attorney's signing.

When is an enduring power of attorney useful?

An enduring power of attorney may help avoid having the court appoint a “committee” of one or more people to look after your legal and financial affairs in the event that you become mentally incompetent. A committee appointment is much more expensive than making an enduring power of attorney. See script 426 on “Committeeship” for more information on this.

What are the duties of an attorney under an enduring power of attorney?

Before a person agrees to act as an attorney under an enduring power of attorney, the person should be aware of the duties and obligations that they will have as an attorney. All of the duties and obligations are described in the Power of Attorney Act. These include the duty:

• to act honestly and in good faith
• to act in your best interests, taking into account your current wishes, known beliefs and values and any directions that are set out in the document
• to not dispose of any property that the attorney knows is specifically gifted in your Will
• to keep your assets separate from the attorney's assets
• to keep proper records, including creating and maintaining a list of your property and liabilities

What decisions can be delegated with a power of attorney?

A power of attorney is used to delegate financial and most legal decisions. This is true for both a power of attorney and an enduring power of attorney. But your attorney cannot make medical or health care decisions for you, such as consenting to surgery or dental work for you. For these decisions, you need to make what’s called a “representation agreement”. In the event that there is a conflict between your enduring power of attorney and your representation agreement, the provisions of your enduring power of attorney will prevail.

What is a representation agreement?

The Representation Agreement Act allows you to appoint someone as your legal representative to handle your financial, legal, personal care and health care decisions, if you’re unable to make them on your own. You cannot appoint any person who is paid to provide you with personal or health care or who is an employee of a facility through which you receive personal or health care, unless that person is your child, parent or spouse. The document is called a representation agreement and it creates a contract between you and your representative.

There are new changes to the Representation Agreement Act

Changes to BC’s Representation Agreement Act came into effect 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 all the new laws.

Your representative has certain duties they must follow

Before a person agrees to act as a representative, that person should review and be aware of the duties and obligations that they will have as a representative. For example, your representative must consult with you, as much as is reasonable, to determine your wishes. Some of the other duties of representatives include the duty:

• to act honestly and in good faith
• to take into account your current wishes, and if you’re unable to express your wishes at that time, to take into account any wishes or instructions you may have given while you were capable of doing so
• to act within the authority granted by the representation agreement
• to keep your assets separate from the representative's assets
• to keep proper records including creating and maintaining a list of your property and liabilities

The agreement should name a monitor

Generally speaking, unless your representative is your spouse, the representation agreement must name another person as a “monitor” to help ensure that the representative lives up to his or her duties. Otherwise, the agreement must state that a monitor isn’t required.

Are there different types of representation agreements?

There are two types, both dealt with in the Power of Attorney Act:

• Section 7 of the Act deals with “limited agreements” – these cover straightforward, everyday decisions
• Section 9 of the Act deals with “general agreements” – these deal with complex personal care and health care matters

A general agreement is needed for your representative to make such decisions as refusing life support if you become terminally ill.

There are strict rules for signing a representation agreement

Two witnesses are needed when you sign a representation agreement (unless one of the witnesses is a lawyer, in which case you only need the signature of that lawyer witness). There are also certain restrictions on who can be a witness.

Do you need a lawyer to make a representation agreement?

The law doesn’t require you to consult a lawyer to make a representation agreement, but you should actually see a lawyer if you want to make an agreement. A lawyer can help you to understand the wide range of issues that arise with a representation agreement.

Can you register these documents somewhere?

At the Nidus Personal Planning Resource Centre & Registry, you can register both enduring powers of attorney and representation agreements. Hospitals, banks and government services can search there to find out who your attorney or representative is if they need to. See www.nidus.ca.

Summary

A power of attorney is a document that allows you to give another person, called the attorney, the authority to act for you in financial and legal matters. The power can be as specific or as general as you wish. But unless you use an enduring power of attorney, it will automatically end if you become mentally incompetent. A representation agreement, on the other hand, can cover personal care and health care decisions, as well as certain financial and legal decisions, if you’re unable to make them on your own.

Where can you find more information?

• The Public Guardian and Trustee of British Columbia has detailed information on powers of attorney, representation agreements and court orders appointing a committee to look after the affairs of a person who is mentally incapable. Their phone number is 604.660.4444 in Vancouver and their website is www.trustee.bc.ca.

• The Nidus Personal Planning Resource Centre & Registry provides detailed information on representation agreements. Their phone number is 604.408.7414, and their website is www.nidus.ca.

• See the provincial government’s website on incapacity planning.

• Refer to script 426 on “Committeeship”.

[updated March 2015]

The above was last reviewed for accuracy by Susan Hart, Jack Montpellier and Anna Kurt.

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