A British Columbia POA does not cover health matters or personal care but is the primary tool for personal planning regarding finances, property, and legal affairs.
On the other hand, Representation Agreements are limited to health care and personal care, except for the limited purpose of routine financial matters in agreements made under s. 7 of the British Columbia Representation Agreement Act.
An attorney under a POA must act in the best interests of the adult while taking the adult’s best wishes and values into consideration: British Columbia Power of Attorney Act s. 19(2). Section 19 of the British Columbia Power of Attorney Act provides that when acting as an attorney (unless the POA specifically provides otherwise) the attorney must:
1) Act honestly and in good faith;
2) Exercise the care, diligence, and skill of a reasonably prudent person;
3) Respect any limitations in the Power of Attorney;
4) Keep a record of all dealings with the property, including all bank and investment accounts; this includes but is not limited to, maintaining a list of the properties and liabilities, the estimated value of the properties, invoices, bank statements, and all records about how the attorney exercises authority as an attorney. The attorney may be required to produce those records (and provide copies) at any time;
5) When making decisions about finances, the attorney must take into account:
a. The adult’s current wishes;
b. The adult’s known beliefs and values; and
c. Any directions given in the POA document;
6) When managing finances, give priority to the adult’s personal care and health care needs, to the extent reasonable;
7) Invest property only as directed by the British Columbia Trustee Act, meaning the attorney must invest only in property or security in which a prudent investor might invest;
8) Foster the adult’s independence and encourage the adult’s involvement in any decision-making that affects the adult, to the extent reasonable;
9) Keep the adult’s personal effects at the adult’s disposal, to the extent reasonable; and
10) Keep the adult’s property separate from the attorney’s property unless the property is jointly owned by the adult and their attorney (and was held jointly before the attorney was named), or has been substituted or derived from jointly owned property.
According to section 20 of the British Columbia Power of Attorney Act, an attorney may make a gift or loan from the adult’s property if the enduring POA permits the attorney to do so or if
(a) the adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult’s dependants, and to satisfy the adult’s other legal obligations if any;
(b) the adult, when capable, made gifts or loans of that nature; and
(c) the total value of all gifts and loans in a year is equal to or less than a prescribed value.
According to the Power of Attorney Regulation, BC Reg 20/2011, s.3, prescribed means the lesser of 10% of the adult’s taxable income for the previous year, or $ 5,000.
Section 24(1) of the British Columbia Power of Attorney Act provides that an attorney can be compensated if the POA expressly authorizes the compensation and sets the amount or rate. An attorney may be reimbursed from an adult’s property for reasonable expenses properly incurred in acting as the adult’s attorney: torney Act, s. 24(2).
An attorney can be compensated on the basis of an hourly rate if it is expressly set out in the POA document.`
An appointed attorney such as a bank or trust company may charge annual fees for the ongoing administration of assets that is equal to a percentage of the market value of the estate assets along with an annual fee, again based on the value of assets under its control
If capable, an adult can revoke an appointment under a POA: British Columbia Power of Attorney Act, s. 28(1). In order to revoke a POA, the adult must give written notice to each attorney: British Columbia Power of Attorney Act s. 28(2).
This notice is called a notice of revocation and a donor must give the notice of revocation to any financial institutions or other third parties where their attorney may have acted for them. A revocation is effective when notice is given or on a later date stated in the notice: British Columbia Power of Attorney Act, s. 28(4).
To cancel a POA dealing with land, a donor must file a notice of revocation with the Land Title Office where the land is registered.
Considerations for the maker of a POA in who they appoint can include choosing the right attorney and/or choosing more than one attorney. Adults should consider whether appointing more than one attorney may unnecessarily complicate the management of the adult’s affairs. Section 18 of the British Columbia Power of Attorney Act deals with the situation where a power of attorney assigns authority to multiple attorneys. If more than one attorney is chosen, the POA should set out how a conflict between attorneys is to be resolved. For example, some POA’s state that if a unanimous decision cannot be reached, it will be resolved by mediation, and failing that, arbitration. If there is a deadlock between jointly appointed attorneys, the attorneys may have to seek relief from the court pursuant to the British Columbia Power of Attorney Act, s. 36(1)(a). This may include an application to remove a joint attorney or make them an alternate.
The British Columbia Power of Attorney Act prohibits certain persons from acting as an attorney, which include:
(1) an individual who provides personal care or health care services to an adult for compensation unless the individual is a child, parent, or spouse of the adult; and
(2) an employee of a facility in which the adult resides and through which the adult receives personal care or health care services unless that employee is a child, parent, or spouse of the adult.
Other considerations for the maker of a POA in who they appoint as an attorney may include whether they can trust the person they are appointing and whether the person they wish to appoint is good with finances. The majority of cases involving claims brought against an attorney relating to misappropriation of funds or self-dealing on the part of attorneys, most often when the donor is no longer competent and the power of attorney at issue is enduring.
Often, a person may appoint a corporate body, such as a Trust Company to be their attorney. There may be a number of reasons for doing this including one person acting as an attorney can create family conflict or renew existing family discord and an attorney may feel pressure from other family members or friends to act in a way that is not consistent with what the donor would have wanted; fear of an attorney’s self-dealing; a lack of expertise on the part of the person named under the POA; it eases the burden on friends or family; the donor has no family or friends to act as their attorney.
According to section 4 of the British Columbia Power of Attorney Act, a corporation may empower a person as its attorney to execute deeds or documents on its behalf. This may be used where a Director or Officer is unavailable to sign documents.
A General POA is usually for a specified time frame and/or purpose and becomes invalid on the incapacity of the adult.
A Springing POA does not take effect until the occurrence of an event or date (typically, upon the adult becoming incapable). Section 26(2) of the British Columbia Power of Attorney Act provides that if the power of attorney is effective on a specified event, the power of attorney must provide “how and by whom the event is to be confirmed”.
As a note, a Springing POA may take longer to take effect than expected. For instance, it may take time to get the necessary declarations from a medical doctor and, as a result, the donor may go some time without any assistance in managing their affairs.
An Enduring POA is effective on the date it is when it is signed by the person and the attorney and endures even after the adult becomes incapable. An enduring POA can also be “springing” and triggered to become effective only if certain events occur. If the effectiveness of the enduring POA is to be deferred until a specified event, the enduring POA must provide “how and by whom the event is to be confirmed”.
Click here to read about the Different Types of Power of Attorney.
Click here to read about the Legal Responsibilities of a Power of Attorney.
In BC, the different types of Powers of Attorney (POA) include:
(1) A General POA;
(2) A Springing POA and
(3) An Enduring POA.
A General POA in British Columbia applies to all assets owned by the donor and ends upon the incompetency of the donor. Section 9 of the Power of Attorney Act, R.S.B.C. 1996, c. 370 (“POAA”), states that a general power of attorney confers authority on the attorney to do on behalf of the donor anything the donor can lawfully do by an attorney. The attorney does not have the power or authority to make decisions about an adult’s health care or personal affairs, such as consent to medical treatment, or where the adult should reside.
A Springing POA refers to a document in which the attorney’s authority can be exercised only if certain events occur. This power of attorney might specify that it comes into effect only upon one or two medical doctors providing a statutory declaration stating that the adult is “incapable of making decisions about the adult’s financial affairs”.
An Enduring POA contains a clause that specifically allows the power of attorney to continue to be effective if the adult should later become incapable of managing their affairs. Without such a specific direction, at common law, a power of attorney ceases to have any effect upon an adult becoming incapable.
Click here to read our article When Does a Power of Attorney Take Effect?
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There are three ways to change a non-electronic Will. If you have an electronic Will, the only way to make changes is to execute a new Will. For a non-electronic Will, you may choose to make a new Will, you may execute what is called a codicil, or you may make one or several interlineations.
A codicil is an instrument that is meant to be read with a Will and must meet all the same requirements as a Will (including being in writing, signed at its end by the will-maker, and having 2 witnesses), but only refers to the specific provisions that are to be altered by the codicil. If there is a relatively minor change, a codicil may be easier than making a new Will.
Interlineations are physical alterations to the existing Will which are made by adding or striking out words in the Will. These physical changes must also be witnessed and signed off on, and they can make a Will difficult to read and understand. Interlineations are not a recommended method of altering a Will, as the changes may not be found to be valid, and it is usually better to execute a new Will or a codicil. If you wish to make any substantive changes, making a new Will is the best method to ensure your wishes are followed.
You might not even need to make an alteration to your Will. Have you considered a Memorandum? Read our article on Adding a Memorandum to a Will.
Did you mean to ask How to Revoke a Will? Click here to read our article on Revoking a Will.
What do you do if you have made a Will, but you have changed your mind and you want to revoke it? You have a few options to revoke a valid Will. You may choose to make a new valid Will that contains a clause that revokes all previous Wills. You also may burn the Will or tear it up, or otherwise destroy it with the intention of revoking it, or instruct someone to destroy it with the intention of revoking it. There is also the option for you to make a writing that declares your intention to revoke all or part of your Will.
If you make a writing stating your intention to revoke all or part of your Will, in addition to being in writing, it must be both signed by you at its end and signed by 2 or more witnesses who must be present for your signature. In addition to the above, if you have an electronic Will, you may revoke it by deleting the electronic version of the Will with the intention of revoking it.
You should be cautious that you do not accidentally revoke a Will when you do not intend to. If an original Will was last in the possession of the will-maker and it cannot be found when the will-maker dies, the presumption is that the will-maker destroyed it with the intent to revoke. This can be avoided by ensuring that the original Will is kept in a safe place that is known to the executor, such as with a lawyer’s office.
A Memorandum to a Will can be a helpful tool if the Will-maker has items they wish to gift. It is essentially a list or schedule of items and how the Will-maker wishes to distribute them. This may be something to consider for collectors, or those with numerous sentimental items that will be distributed to various persons or organizations.
There are two types of Memorandum: one that forms part of the Will, and one that does not. If the Memorandum is to form part of the Will, there are certain requirements that must be met. These requirements include that
A potential downside of a Memorandum that forms part of the Will is that it is difficult to change or to add to, and the same strict rules that apply to a Will will apply to the Memorandum. It is recommended that if an item holds significant financial or sentimental value it should be included as a specific bequest in the Will rather than in a Memorandum.
The other option is a Memorandum that is not intended to be legally binding on the executor, but rather a guide directing the personal representative on how assets are to be distributed. The advantage is this form of Memorandum can easily be changed by the Will-maker, and they may add and remove assets/items as they go. However, because this form is a guide for personal representatives, not a requirement, there is a chance that the assets/items may not end up with who the Will-maker intends them to.
Read our Trusts & Estate Law articles for more information. You can also read our How to Make Changes to a Will Article.
If you’re not sure whether a Memorandum or a Bequest would be better contact Heath Law in Nanaimo to help you with your Will.
Heath Law LLP is a full service law firm that opened in Nanaimo on Vancouver Island in 1950. We are proud of our heritage. Six of our lawyers have been appointed to the Supreme Court of British Columbia, four as Judges, one as an Associate Judge and one as a Judicial Justice. Heath Law LLP boasts high calibre and experienced legal counsel.
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