Introduction
A Power of Attorney (PoA) is a legal document that grants one or more individuals (the attorney) the authority to act on behalf of another person (the grantor) regarding financial and legal matters. This document becomes particularly vital when the grantor cannot manage their affairs due to illness, absence, or incapacity.
The Legal Framework of Power of Attorney in British Columbia
In British Columbia, the provisions of the Power of Attorney Act govern the creation and operation of a PoA. To create a valid PoA under this Act, the person granting power—the grantor—must be an adult (at least 19 years old) and fully comprehend their decision’s implications.
The grantor must willingly designate one or more individuals or a financial institution as their attorney, who will manage their financial affairs and legal matters. These could range from everyday tasks such as banking and paying bills to more complex issues such as selling property, making investments, or handling business operations.
An important distinction is that a PoA in British Columbia strictly covers financial and legal affairs. Decisions about health care or personal care services for the grantor require a separate legal document called a Representation Agreement, per the Representation Agreement Act of British Columbia.
Another key piece of legislation is British Columbia’s Adult Guardianship Act, which provides added protections against the financial abuse of adults who cannot manage their affairs. The Act gives designated agencies the authority to respond to situations where an adult may face abuse, neglect, or self-neglect and has no other means of assistance. It can come into play if there are concerns about the conduct of the person holding the Power of Attorney.
The Power of Attorney Act and the Adult Guardianship Act form a legal framework that seeks to protect the rights and interests of adults who need assistance managing their affairs and provide guidelines and restrictions for those entrusted with that responsibility.
Remember that the specific application of these laws can vary depending on individual circumstances, so it’s always a good idea to consult with a Notary Public or legal professional to fully understand how these laws apply to your situation.
Types of Power of Attorney in British Columbia
Two primary types of Power of Attorney (PoA) in British Columbia – Ordinary or Specific and Enduring, each serving a unique purpose.
- Ordinary or Specific Power of Attorney: This type of PoA is used for specific transactions or for a fixed period. The grantor, the person giving the power, may wish to authorize someone to act on their behalf during their absence, such as when travelling abroad or undergoing a medical procedure. For instance, the attorney can handle banking transactions, sign documents, or make decisions regarding the grantor’s property. However, the key aspect of an Ordinary oe Specific Power of Attorney is that it becomes invalid if the grantor loses mental capacity.
- Enduring Power of Attorney: Unlike an Ordinary Power of Attorney, an Enduring Power of Attorney remains valid even if the grantor becomes mentally incapable due to illness or injury. The ‘enduring’ nature of this PoA ensures that the grantor’s financial and legal affairs will continue to be managed according to their wishes. This type of PoA can be set up to come into effect either immediately upon signing or only when the grantor loses mental capacity, as specified in the document.
When creating an Enduring Power of Attorney, it is crucial to consider potential future scenarios. The attorney should be a trusted individual or a reputable institution that will act in the grantor’s best interest. It’s also important to consider appointing a monitor – a person or institution supervising the attorney’s actions.
When creating any PoA, the grantor should fully understand their rights and the attorney’s responsibilities. It’s also highly recommended to seek advice from a Notary Public or a legal professional to ensure all legal requirements are met, and the document accurately reflects the grantor’s wishes.
The Role of the Notary Public in Creating a Power of Attorney
A Notary Public’s role is indispensable in creating a Power of Attorney (PoA). The Notary Public doesn’t just facilitate the execution of the document but provides guidance as to legal implications.
Their responsibilities include:
- Document Preparation: A Notary Public ensures that the PoA document is drafted following the law and the grantor’s specific circumstances and requirements. They will help translate your needs and wishes into the legal language required for such a document.
- Identity Verification: The Notary Public is responsible for verifying the grantor’s identity to prevent fraudulent activities. They will check government-issued identification documents to ascertain the identity of the individual creating the PoA.
- Assessing Capacity: Before the PoA is signed, the Notary Public must confirm that the grantor has the mental capacity to understand the powers they’re granting and the document’s implications. They will assess the grantor’s understanding of the document, ask pertinent questions to gauge comprehension and ensure no undue influence or duress is involved.
- Execution of Document: The Notary Public will oversee the signing of the PoA, ensuring that the grantor and attorney(s) sign the document correctly. In many cases, the notary public will also affix their seal to the document, officially notarizing the PoA.
- Counsel and Advice: An often-overlooked role of the Notary Public is to provide counsel. They can explain the rights, duties, and responsibilities of creating a PoA. This is crucial to ensure the grantor understands the full breadth of the powers they bestow and the responsibilities the attorney accepts.
- Copies: Once the PoA is executed, the Notary Public can provide certified true copies to the grantor and attorney.
By fulfilling these roles, a Notary Public helps advise the grantor of potential legal pitfalls providing peace of mind that their best interests are being upheld.
The Responsibilities and Limitations of a Power of Attorney
Once a person is given the role of an attorney in a Power of Attorney (PoA) arrangement, they are bestowed with significant responsibilities and legal limitations. Both the grantor and the attorney need to understand these in order to manage expectations and obligations effectively.
Responsibilities of an Attorney
- Acting in the Grantor’s Best Interest: An attorney is legally obligated to act in the best interests of the grantor, considering the grantor’s current wishes, known beliefs, and values.
- Accountability: The attorney must keep accurate records of all transactions and decisions made on the grantor’s behalf. This includes receipts, bank statements, and notes on decisions.
- Regular Updates: The attorney may be required to provide regular updates to the grantor (if capable) or other designated individuals about the grantor’s financial situation.
- Financial Responsibility: Attorneys must keep the grantor’s finances separate from theirs. They must keep the grantor’s money and property different from their own unless the grantor has specifically instructed otherwise.
- Decision-making: The attorney must make reasonable efforts to determine the grantor’s current wishes before deciding. If this is not possible, they should base their decisions on what they believe the grantor would want based on their known beliefs and values.
Limitations of a Power of Attorney
- Cannot Make Health or Personal Care Decisions: Unless explicitly stated in a separate Representation Agreement, an attorney cannot make decisions about the grantor’s health care or personal matters.
- Limited to Financial and Legal Matters: An attorney’s authority is usually limited to managing the grantor’s financial and legal affairs.
- Adherence to the Document: The attorney must follow the instructions outlined in the PoA document. They can only do something that the document authorizes them to do.
- No Right to Delegate: Unless the PoA document explicitly allows it, an attorney cannot delegate authority to another person.
- Must not Benefit Themselves: Unless expressly stated in the PoA or agreed upon by the grantor, an attorney cannot use the grantor’s money or property for their benefit.
Understanding these responsibilities and limitations is crucial for maintaining a trust-based relationship between the grantor and the attorney. For more detailed advice, it’s always advisable to consult with a Notary Public or a legal professional who specializes in PoA arrangements.
Revoking a Power of Attorney
There might come a time when you, as a grantor, wish to revoke or cancel your Power of Attorney (PoA). This could be due to various reasons, such as changes in your relationship with the attorney, finding a more suitable person to act as your attorney, or your circumstances evolving so that a PoA is no longer required.
To successfully revoke a Power of Attorney, you must adhere to a specific process, as outlined below:
- Written Revocation: You must write your intent to revoke the Power of Attorney. This is typically called a “Revocation of Power of Attorney.” The document should include your name, a statement that you are of sound mind and wish to revoke the Power of Attorney, and the date of the original Power of Attorney.
- Notary Public: It’s a good practice to sign the revocation in front of a Notary Public. This step is only sometimes legally required but provides additional legal weight to your document by verifying your identity and that you signed the document willingly.
- Deliver the Revocation: Once the revocation document is notarized, it should be delivered to your attorney and any institutions or agencies (like banks, credit unions, or the land titles office) that have a copy of the PoA.
- Proof of Delivery: You should keep proof that you delivered the revocation. This could be in registered mail receipts or a signed statement from your attorney acknowledging that they received the revocation.
- Destroy Original PoA Documents: If possible, destroy the original Power of Attorney and any copies to avoid potential future misuse.
Please note that revoking a Power of Attorney doesn’t cancel the rights of any third party (like banks or other institutions) who acted on the PoA before they knew it was revoked.
Also, losing the mental capacity to make decisions means you cannot revoke an enduring Power of Attorney. Only a court can do that.
For all these steps, the assistance of a Notary Public or a legal professional can be invaluable in ensuring a smooth process, avoiding misunderstandings, and confirming your legal protection.
Conclusion
Understanding the basics of Power of Attorney in British Columbia is essential for anyone considering this legal arrangement. With the guidance of a Notary Public, you can ensure that your PoA document is correctly drafted, validated, and serves your best interest. Remember, a PoA is not just a document; it’s a powerful tool for managing your legal and financial affairs at a time if you are incapable, unwiling or unavailable.
References
- Power of Attorney Act – British Columbia
- Adult Guardianship Act – British Columbia
- The Society of Notaries Public of British Columbia
- Nidus Personal Planning Resource Centre
- Public Guardian and Trustee of British Columbia
Remember, while this article provides a basic understanding of the Power of Attorney in British Columbia, laws can change, and each individual’s situation is unique.
Always consult a Notary Public or legal professional when considering a Power of Attorney. It’s not just about making your life easier; it’s about protecting your interests and those of your loved ones.
