Enduring Power of Attorney
A Power of Attorney (“POA”) is a legal document which appoints another person (the “Attorney”) to make legal and financial decisions for you. An enduring POA is a POA which continues to have effect while, or come into effect when you are incapable. It is a very useful estate planning tool in the event you become mentally or physically incapable.
A new Power of Attorney Act came into force inBritish Columbiaon September 1, 2011, and it made broad changes to the old legislation. If you make a POA, you are now given a number of choices, including but not limited to the following.
Appointing One Or More Than One Attorney
You may appoint one or more than one Attorney and may grant different areas of authority to each Attorney. If all or part of the same area of authority is assigned to more than one Attorney, the Attorneys must act unanimously unless you:
(a) describe the circumstances in which the attorneys need not act unanimously;
(b) set out how a conflict between attorneys is to be resolved;
(c) authorize an attorney to act only as an alternate attorney and set out
(i) the circumstances in which the alternate is authorized to act in place of the attorney, including, for example, if the attorney is unwilling to act, dies or is for any other reason unable to act, and
(ii) the limits or conditions, if any, on the exercise of authority by the alternate.
Continuing and Springing Powers of Attorney
You must decide if the Attorney may act while you are capable or only while you are incapable.
You must also decide when the POA is effective. The new Act provides that an enduring POA is effective on the latest of:
(a) the date by which the POA has been signed both by you and the Attorney,
(b) a date stated in the POA as being its effective date, and
(c) the date an event described in the POA as bringing it into effect is confirmed to have occurred.
If the POA is effective after a specified event occurs, you must state how and by whom the event is to be confirmed.
The “how” and “by whom” must be set out very clearly in the POA to avoid problems in the future. Who is to decide that you have become incapable? Doctors seem to be the answer but it may be difficult to find a doctor who is willing and qualified to perform the assessment to give such opinion. It may also take time to obtain such opinion.
Payment and Expenses of Attorney
You may provide compensation to the Attorney by stating the amount or rate in the POA. If the Attorney is to be compensated, is he or she to be paid a fixed fee and if so, is that a lump sum payment or an annual fee? If the Attorney is to be paid a rate, what is that rate and what is it based on? What are the terms of payment?
Express Powers and Restrictions
You may give express powers to your Attorney, such as transferring your property to your Attorney, which is not allowed unless the POA expressly authorizes such transfer.
You may also restrict your Attorney’s powers by expressly setting out such restrictions in the POA.
Now that you are given more choices, you can customize your POA to your needs. Please contact us should you require legal assistance in preparing your POA.