Personal Planning

What is a Power of Attorney?

A Power of Attorney allows a capable adult to appoint a person or persons to handle their financial and legal matters in the event they are unable to do so themselves or need assistance. The document also specifies whether these individuals are allowed to act separately or required to act together. Because of the financial authority conveyed, it is critical that the Adult fully understands what powers they are granting with this document and have complete trust in the person they are appointing. It also allows the Adult to compensate their designated attorney for performing actions on their behalf.

Who should have a Power of Attorney?

This document has great value for anyone who:

wants to ensure that a trusted person would take care of bill paying, correspondence and financial management in the event of incapacity or absence
may need assistance with their daily finances now or in the future
wants to avoid the very lengthy and expensive process of a court-appointed committee should they suddenly become incapable
wants to avoid having the Public Guardian and Trustee take over his or her affairs

Who can be an attorney?

You can name anyone you trust to be your attorney. You may choose your spouse, a family member or a close friend. If the person is not an adult, that person cannot act until he or she turns 19.
It is important to know that you cannot name someone who is paid to provide personal care or health care services to you. This includes employees working at a facility where you live that provides these services. There is an exception if the attorney you choose is your spouse, child or parent.
You may also name a trust company, or a credit union authorized to provide these services. In determining who would be a good attorney for you, consider their ability to be available as well as their knowledge and skills.

Deed or Gift

A Deed of Gift documents a significant gift to another person during one’s lifetime. When prepared and notarized by a Notary, it proves the donor’s intention for the gift which can be required to counter undue influence or arguments after the donor’s death. This can also be useful in circumstances where a person near death wants to transfer their assets or home into joint tenancy or wants to give a significant sum of money or gift to another person during their lifetime.

Who should consider a Deed of Gift?

Anyone who wants to transfer an asset, as a gift, before their death.

Advance Directive

Advance Directives document instructions to doctors, nurses and other healthcare providers for an individual’s future health care. This ensures their wishes will be carried out by healthcare providers if they are unable to express them in the future.

Who should have an Advance Directive?

People who want to ensure that their wishes are followed even if:

their family’s wishes differ from their own
they have no family who could be appointed as their representative
they have concerns that differing opinions among their family might cause conflict if a decision has to be made about where you should live or end of life

Representation Agreement

A Representation Agreement appoints a representative, or multiple representatives, to make decisions regarding an individual’s health and personal care in the event they are unable to communicate their own wishes. Depending on how the Representation Agreement is prepared, a designated representative’s authority can include:

routine finances
decisions regarding health care, personal care, and limited legal affairs
refusal or consent to life support treatment and care
consent to less common medical procedures/treatment
consent to treatment the Adult approved while capable but since losing capacity has refused to consent
deciding on living arrangements for the Adult including choosing a care facility

A Notary can help determine the appropriate scope for specific representative(s).

Who should have a Representation Agreement?

Any adult who wants to ensure that a specific person or persons are appointed to make decisions for them, especially if they have no spouse; or no spouse and no children, or if their children are in conflict with one another or would not be good decision makers.

FAQ

Who can make an EPOA?

Any adult (someone 19 or older in BC) can make an EPOA unless incapable of understanding the nature and consequences of the document. The Power of Attorney Act says an adult is incapable of understanding the nature and consequences of the document, if the adult cannot understand all of the following: (a) the property the adult has and its approximate value; (b) the obligations the adult owes to his or her dependents; (c) that the adult’s attorney will be able to do on the adult’s behalf anything in respect of the adult’s financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney; (d) that, unless the attorney manages the adult’s business and property prudently, their value may decline; (e) that the attorney might misuse the attorney’s authority; and (f) that the adult may, if capable, revoke the enduring power of attorney.

What does an EPOA cover?

An EPOA can only deal with your legal and financial affairs. Financial affairs can include paying your bills, doing your banking, managing your investments, selling your assets and paying your taxes. Financial affairs may also include looking after financial responsibilities to your dependents. Legal affairs can include hiring a lawyer to start or defend a legal action. You can make an EPOA that is specific, or it can be broad. Many EPOAs are broad so that the attorney has the authority to deal with anything that may need attention. A power of attorney does not cover decisions about your personal and health care. A representation agreement must be used if you want to choose someone to make your personal and health care decisions.

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