What is an enduring power of attorney?
A Power of Attorney is a document you can sign to authorize one or more persons to make decisions for you concerning your assets and financial affairs. An "enduring" Power of Attorney is one that continues to be effective if you become mentally incapable of managing your affairs after you have signed it.
What happens if I become mentally incapable and I have not signed an enduring power of attorney?
The Public Guardian and Trustee of British Columbia may take over the management of your financial affairs, or the Supreme Court of British Columbia may appoint a person or persons to do so. Neither outcome is ideal and both can result in significant and unnecessary expense for you and your family. Most people would prefer to decide for themselves who should play this role should they become incapable.
What should I appoint?
First and foremost, it should be someone you trust, and preferably someone who knows your family and can bring to the role of attorney experience and skills relevant to your assets and circumstances. The law does not require that the attorney be resident in British Columbia, but it can be helpful from a practical perspective to appoint someone who lives nearby.
Can I appoint more than one person to act as mu attorneys?
Yes, and that can be beneficial for a number of reasons. For example, it can be difficult to find in one person all of the skills and qualities that you may want in your attorney. Appointing one person who knows your family and has the same parenting approach as you do when it comes to financial matters, and a second person who has investment or business expertise relevant to your assets, might be a good way to ensure that the right kind of judgement and expertise is brought to bear in decisions relating to your affairs.
If you decide to appoint more than 2 people, you should consider permitting your attorneys to act by majority decision. This can facilitate the administration of your affairs if one of them is travelling or is for some other reason unable to give effect to decisions that must be made. It also builds into the document a dispute resolution mechanism should your attorneys be unable to reach a consensus on a particular issue.
What other provisions might I include in my power of attorney?
There are many provisions you should consider including, for example
- The appointment of an alternate attorney in case one of your primary attorneys is unable to act
- The power to use assets for the benefit of your spouse and other family members
- The power to satisfy charitable pledges you have made or make charitable gifts on your behalf in keeping with the pattern of giving that you displayed when you managed your own affairs
- A direction that your attorneys be compensated for the time and effort spent attending to your affairs, with instructions as to how that compensation will be calculated.
We would be pleased to discuss with you these and other provisions you may wish to consider depending on your personal and financial circumstances.
Health care representations agreements
A Representation Agreement is a document you can sign under the law of British Columbia if you wish to give someone the authority to make personal and health care decisions for you if you are unable to make those decisions yourself.
Selecting Representative
Again, it should be someone you trust who understands how you would want decisions concerning your personal and health care to be made should you become incapable of making them yourself.
You can appoint more than one person to act, but they should be people you believe will be able to work together co-operatively if difficult issues arise. While they do not have to reside in British Columbia, it might be helpful if at least one of them lives nearby and is able, for example, to personally consult with doctors and instruct and supervise caregivers, if need be.
Special provisions to consider including in a representation agreement
There are many provisions you might think about including in your Representation Agreement. For example, sometimes people direct that they not be subjected to particular procedures, such as blood transfusions. Sometimes people express a wish that heroic measures not be taken to keep them alive if there is no reasonable hope of recovery from some extreme illness or accident. Some people wish to be cared for at home for as long as possible. Others specify that, should it become advisable for them to be cared for in a residential facility, they would like their representative to choose the best quality care facility that is close to where their family members reside. We would be pleased to discuss these and other provisions you might wish to include with you so as to ensure that the agreement reflects your wishes and personal values.
Revoking and amending powers of attorney and representation agreements
A Power of Attorney and a Representation Agreement can be revoked or amended provided that you are mentally capable of doing so at the time and provided that you do so in compliance with the applicable legal formalities.
Our recommendations
If you live in British Columbia or own property in British Columbia, you should consider granting an enduring Power of Attorney to one or more persons you trust to help ensure that your financial affairs will be properly managed for your benefit and for the benefit of your family should you become incapable.
You should also consider putting in place a Health Care Representation Agreement so that someone you trust can make personal and health care decisions for you if you can't make those decisions yourself.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
