What are considerations for the maker of a Power of Attorney (POA) in who they appoint?
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.