Introduction
A Power of Attorney (POA) is a crucial legal document that allows an individual (the donor or principal) to appoint another person (the attorney) to act on their behalf in managing financial, legal, and sometimes personal affairs. In British Columbia, POAs are governed by the Power of Attorney Act, SBC 2011, c 17, which outlines how these powers are created, used, and terminated.
Having a valid POA can ensure continuity in financial and legal decision-making, particularly in situations where the donor becomes incapacitated or unavailable.
The Importance of the Power of Attorney
A POA is a key estate planning tool which can help in:
Continuity in financial management and, ensures ongoing management of assets, mortgages, business transactions, and financial obligations.
Avoidance of legal delays that may arise in the absence of a POA, where family members may need court authorization to access bank accounts or manage assets if the donor becomes incapacitated.
Cost-effective estate planning, because a properly drafted POA prevents the need for a court-appointed committee under the Patients Property Act, which can not only be expensive but also time-consuming.
Types of Power of Attorney in British Columbia
An adult, defined as anyone 19 years or older, can create a POA. In British Columbia, there are two kinds of power of attorney: the general power of attorney and the enduring power of attorney. With either the general or enduring power of attorney, an attorney is not authorized to make medical, health, or personal care decisions on your behalf. In B.C., these decisions are assigned through Representation Agreements and Advance Directives.
1. General Power of Attorney:
A General POA provides extensive powers to an attorney to manage the donor's financial and legal affairs. However, it has a limitation: it automatically ends if the donor becomes mentally incapacitated, unless otherwise specified. This type of POA is beneficial for temporarily delegating authority, such as overseeing business matters during travel. A POA can also confer authority for a specific task, like selling property on the donor's behalf or handling a bank account, and it concludes automatically when the designated task is finished.
2. Enduring Power of Attorney:
An Enduring POA stays valid even if the donor loses mental capacity. It remains effective if it explicitly states that it continues to be valid despite the donor's incapacity (s. 14(b)), and the donor must be mentally competent when signing the POA. This type of POA is often used for estate planning, ensuring that financial decisions can still be made if the donor becomes mentally incapacitated. It permits the management of financial affairs without court involvement or the necessity for a court-appointed committee under the Patients Property Act.
3. Representation Agreements and Advance Directives:
Although Representation Agreements and Advance Directives are not regulated by the POA Act, they are valuable tools that enable individuals to prepare for their health needs in case of mental incapacity. Similar to enduring powers of attorney, representation agreements are legal documents that allow individuals to plan for potential future incapacity. They enable a person to designate someone else to handle their personal and health care needs and financial affairs if they become unable to do so themselves.
The Health Care (Consent) and Care Facility (Admission) Act was revised to include provisions for advance directives in health care decision-making. An advance directive is a written instruction created by a competent adult, granting or refusing consent to health care if the adult is unable to provide the instruction when the health care is needed.
Legal Requirements for a Valid Power of Attorney
To ensure a POA is legally valid in British Columbia, the following requirements must be met:
Mental Capacity: The donor must understand the nature and consequences of granting the POA (Power of Attorney Act, s. 12).
Proper Execution & Witnessing: A POA must be signed by an adult in the presence of two witnesses (s. 16(1)(a)) who are both in the presence of the adult and witnesses must not be beneficiaries or attorneys under the POA.
Clarity in Powers Granted: The POA must clearly outline the attorney’s powers to avoid ambiguity or misuse.
Attorney Duties & Responsibilities
An attorney is an individual authorized by a POA to act as an attorney and has signed the POA. Attorneys are held to high standards of care and fiduciary duty:
Fiduciary Duty: An attorney must act honestly, with good faith, and prioritize the donor’s best interests (s. 19(1)). Attorneys cannot use the donor’s funds for their own benefit.
Record-Keeping Obligations: An attorney must keep detailed financial records of all transactions. These records may be requested by the donor, a third party, or a court.
Avoiding Conflicts of Interest: An attorney must not prioritize personal interests over the donor’s interests. Court action can be pursued if an attorney misuses their authority.
How a Power of Attorney Concludes
A POA ends automatically under certain conditions:
Revocation by the Donor: The donor can revoke a POA at any time, as long as they are mentally competent (s. 28).
Completion of Task: A Specific POA concludes once the assigned task is finished.
Death of the Donor: All POAs end automatically upon the donor’s death.
Court Intervention: Courts have the authority to revoke a POA if the attorney is found to have committed misconduct.
Conclusion
Here’s a revised version of your text to reduce repetition and enhance clarity: In British Columbia, a Power of Attorney (POA) is a vital legal document that enables trusted individuals to manage financial and legal matters when necessary. Whether for temporary or long-term purposes, a well-crafted POA can prevent financial disruptions and legal complications. It ensures that decisions are made in the donor's best interest, addressing both immediate and future needs. Consulting legal experts is essential to ensure that the document meets all legal requirements and is customized to specific circumstances, particularly when establishing an Enduring Power of Attorney.
To obtain legal guidance on creating or implementing a POA, seek advice from a lawyer to ensure adherence to BC law. Arcstone Law Corporation offers estate planning services, including will drafting and power of attorney preparation. You can reach us via email at admin@arcstonelaw.com or schedule a consultation on our website. All legal services are provided by Arcstone, a law corporation.
Contributor:
Name: 'Bolanle Oduntan*
Title: Managing Lawyer
Email: bolanle@arcstonelaw.com
*practicing through Arcstone Law Corporation
This blog, website, and the information contained therein are made available by Arcstone Law Corporation for informational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The information is not legal advice and should not be considered as such. By using this blog site, you understand that there is no lawyer-client relationship between you and the blog, and the website publisher. The blog and website should not be used as a substitute for competent legal advice from a licensed professional lawyer in your province. If you have specific questions about the issue to which this blog speaks, kindly consult with your legal counsel or other legal services provide
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