An Enduring Power of Attorney is a legal document for personal planning in British Columbia. It is a way to authorize a person(s) of your choice to manage your financial and legal affairs if you need assistance due to illness, injury and disability.
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. This document is in effect while you are alive and ceases to exist upon your death. 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.
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
- 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
When should I make an Enduring Power of Attorney?
- It is important to make an EPA before a crisis happens. This could be when you turn 19 years old, the age of majority in B.C. – when parental rights end. As an adult, no one, not even a spouse, has legal authority over your financial or legal affairs.
Who should I appoint in my Enduring Power of Attorney?
- There are two roles within an Enduring Power of Attorney: 1) attorney, and 2) alternate attorney. The term ‘attorney’ does not refer to a lawyer. People usually appoint a spouse, family member or friend. The people you appoint do not have to live in B.C. It is common for spouses to appoint each other, but they will want to appoint someone else as a back-up.
- The person who you appoint as you attorney should be someone who is prepared to accept the responsibility. The person much be 19 years or older, must be mentally capable and understand what it means to have power of attorney or to be a representative.
- The law has some restrictions. You cannot appoint: 1) someone who is compensated to provide health or personal care services to you (e.g. a paid caregiver); or 2) an employee of a facility where you live if the facility provides health or personal care services to you. These restrictions do not apply if the person is your spouse, parent or child.
- Sometimes people appoint a Trust Company, a Credit Union, or a professional. These parties will charge a fee for their services and special wording is required in the EPA to cover this.
What are the duties of an attorney?
- An attorney must act honestly and in good faith. They must act within the authority given in the EPA and follow any directions you included.
When does an Enduring Power of Attorney take effect?
- Enduring Powers of Attorney are called ‘enduring’ because they are effective even when you are mentally incapable. You can also say that your EPA will be in effect while you are capable. This does not prevent you from continuing to manage your own affairs for as long as you are capable.
- Why would you want it to be in effect while you are capable? It is important to realize that mental incapability is not ‘all or nothing.’ It can be gradual, such as with dementia. There are other conditions where you are capable, but may want help because an illness or injury is affecting your energy or concentration. You may also need assistance because you are physically unable to manage your financial affairs such as when you are on vacation or in hospital with a broken leg.
- To be effective, an EPA must also meet specific signing and witnessing requirements. You, the adult, must sign the EPA, and your signature must be witnessed. Only one witness is required if the witness is a notary public or lawyer. Each attorney you appoint must also sign the EPA before they can act, and their signature must be witnessed. You and the attorney do not have to sign at the same time.
When does an Enduring Power of Attorney end?
- An Enduring Power of Attorney ends when you die; then your Will takes over. It also ends if you revoke it or if someone is appointed to be your legal guardian (i.e. Committee of Estate) through the B.C. Supreme Court or if the Public Guardian and Trustee takes over your affairs.
Can I revoke my Enduring Power of Attorney?
- Yes. If you are capable of making an EPA, you are capable of revoking it. Making a new EPA does not automatically cancel your previous one. The Power of Attorney Act outlines specific requirements for revoking.
How do I make an Enduring Power of Attorney?
- Most people will go to a notary public or a lawyer to make a Power of Attorney.
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