Power of Attorney - Frequently asked Questions


What is a Power of Attorney?

This is a document that gives the person appointed (the attorney) the authority to act on your behalf (the donor) for financial matters while you are still alive. The powers provided can be specific or very broad.

For example, your attorney can be appointed to do anything you could do with your own assets such as pay your bills, deposit monies, sell the property you own, purchase more suitable care or accommodation for you, raise money for necessary surgery, etc.

 


Enduring Power of Attorney, what is it?

An Enduring Power of Attorney provides that the powers granted shall continue to be in effect should you become mentally incapable because of age, accident or illness. Without the “Enduring clause” an ordinary Power of Attorney ceases to be effective at the same time as the donor loses the capacity to transact matters on their own behalf.

 


Can’t my spouse just sign for me?

No one can legally sign on your behalf in the absence of prearrangement or evidence of your authority to do so. Of course it’s OK if the two of you already share( “either/or”) signing authority on a joint bank account, for example, but for transactions involving assets in your name only or where all co-owners must sign (such as real estate) – only your signature or that of your legally authorized (by way of Power of Attorney) signatory will do.

 


Do I lose power to deal with my own assets when making a Power of Attorney?

No. They are not affected in any way by executing a Power of Attorney, there is simply an additional person who can sign on your behalf.

 


Who should I appoint as my Attorney?

The person you appoint as your attorney should be someone who is honest and has good judgment. A Power of Attorney gives the person you appoint very broad powers and if misused can cause you a lot of harm. Your attorney can be family members, friends or some other person or persons that you trust.

 


Can my Attorney make medical or health care decisions on my behalf?

A Power of Attorney is used only for financial matters. Your attorney cannot make medical or health care decisions on your behalf, such as where you are going to live or consent to surgery. For these decisions, you will need to make what is known as a “Representation Agreement”. You can find more information on Representation Agreements at the Representation Agreement Resource Centre website at: www.rarc.ca

 


Does the person I appoint as my Attorney have to act?

Granting a Power of Attorney to someone doesn’t mean that the attorney appointed has to act as your attorney if they don’t want to. The attorney appointed must sign the Power of Attorney document consenting to act as your attorney. Before appointing someone as your attorney you should always check to make sure that they are willing to act as your attorney.

 


Why do I need an enduring Power of Attorney?

If you do not have an Enduring Power of Attorney and you no longer have the legal capacity to deal with your financial affairs someone will need to make application to the court to appoint a “committee” (pronounced com-i-TAY) for one or more persons to look after your legal and financial affairs. The legal costs for a court application for a committee are much more expensive than the legal costs for preparation of an Enduring Power of Attorney. In addition, the courts may not appoint the person you would have preferred.

 


When does a Power of Attorney end?

A Power of Attorney automatically ends when you die then your Will takes over. It also ends if you become bankrupt, or if someone is appointed to be your legal guardian (i.e. Committee of Estate) through the BC Supreme Court. It also ends if you become mentally incompetent unless you say that the power should continue (i.e. you made an Enduring Power of Attorney). You can also terminate a Power of Attorney (provided you still have legal capacity) by giving written notice to your attorney saying that the Power of Attorney has ended and preferably destroying all originals or copies of the document (to prevent misuse by the attorney). You should also give written notice to any person you might feel would have dealings with the attorney.

To cancel or revoke a Power of Attorney that has been filed in the Land Title Office 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 abused their power. It is also possible to put an end-date in the Power of Attorney document itself.

 


Does my Attorney get paid?

Unless you state it in your Enduring Power of Attorney, an attorney must not receive any personal benefit from acting as your attorney; this includes taking a fee or borrowing your money. An attorney can be reimbursed for reasonable out-of-pocket expenses. They must keep records and receipts of any claims.

 


What is a banking Power of Attorney?

Banks and Credit Unions may provide Enduring Power of Attorney forms you can use to cover financial affairs specific to that institution. This may be convenient for banking matters, but is not sufficient for other kinds of matters. For example, if Mary signs a form at her financial institution, it will let John deal with her account, but not with Canada Revenue Agency if he needs to help Mary with her taxes.