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Difference between revisions of "Powers of Attorney and Representation Agreements"
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Powers of Attorney and Representation Agreements (view source)
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Enduring power of attorney | =Enduring power of attorney= | ||
What is an 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. | 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. | ''[http://www.bclaws.ca/civix/document/id/complete/statreg/96370_01#section11 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? | ==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. | 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 [[Committeeship (Script 426)|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? | ==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. | 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? | ==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. | 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 | ==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 [http://www.bclaws.ca/civix/document/id/complete/statreg/96370_01#section16 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. | Under [http://www.bclaws.ca/civix/document/id/complete/statreg/96370_01#section17 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? | ==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: | [http://www.bclaws.ca/civix/document/id/complete/statreg/96370_01#section19 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 | ==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. | Under [http://www.bclaws.ca/civix/document/id/complete/statreg/96370_01#section28 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. | Under [http://www.bclaws.ca/civix/document/id/complete/statreg/96370_01#section30 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. | 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 | =Information for both power of attorney and enduring power of attorney= | ||
Does the person you appoint have to act as your attorney? | '''Does the person you appoint have to act as your attorney?''' | ||
No. A person can refuse to act as your attorney. | No. A person can refuse to act as your attorney. | ||
What decisions can an attorney make? | '''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. | 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 | '''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. | 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 | '''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. | 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. | 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 | '''''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. | The ''[http://www.bclaws.ca/civix/document/id/complete/statreg/96370_01 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? | '''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. | No, but you should use a lawyer who specializes in this area of law because it’s complex. | ||
Can you register these documents somewhere? | '''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. | At the [http://www.nidus.ca/ 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 | =Representation agreement= | ||
What is a 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. | 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 [http://www.bclaws.ca/civix/document/id/complete/statreg/96405_01#section7 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? | ==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. | 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? | ==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. | The representative is usually a spouse or other family member or friend. Under [http://www.bclaws.ca/civix/document/id/complete/statreg/96405_01#section5 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? | 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. | Under [http://www.bclaws.ca/civix/document/id/complete/statreg/96405_01#section6 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? | ==Does the person you appoint have to act as your representative?== | ||
No. A person can refuse to act as your representative. | No. A person can refuse to act as your representative. | ||
Rules for signing and witnessing a representation agreement | ==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). | Under [http://www.bclaws.ca/civix/document/id/complete/statreg/96405_01#section13 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 [http://www.bclaws.ca/civix/document/id/complete/statreg/96405_01#section13 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? | ==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: | Your representative must consult with you, as much as is reasonable, to determine your wishes. Some of the other duties of representatives under [http://www.bclaws.ca/civix/document/id/complete/statreg/96405_01#section16 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: | When helping you to make decisions or making decisions for you, a representative must do the following, in the following order: | ||
| Line 138: | Line 137: | ||
4. act in your best interests if your beliefs and values are not known | 4. act in your best interests if your beliefs and values are not known | ||
Monitor required in some cases | ==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. | 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. | ||
