Enduring Powers of Attorney

What is an Enduring Power of Attorney?

Short Answer:

An Enduring Power of Attorney is a legal document that gives someone else the authority to make legal and financial decisions on your behalf while you are alive.

Long Answer:

An Enduring Power of Attorney is a legal document that gives someone else the authority to make legal and financial decisions on your behalf while you are alive.

Your attorney will be able to do almost everything that you can do yourself, including (but not limited to) paying bills, filing tax returns, renewing insurance policies, and selling your property.

This authority is only valid while you are alive, and ceases to be valid upon your death.

In an Enduring Power of Attorney, the person giving the power is called an “adult” or “donor”.

The person who receives the power is referred to as the “attorney”.

The term “attorney” in this context does not mean a lawyer. It simply refers to the person you appoint to make legal and financial decisions on your behalf when you are unable to act for yourself.

The adult and the attorney must be at least 19 years old.

It is important to note that giving someone Enduring Power of Attorney does not take away your ability to make decisions for yourself. It simply gives another person the authority to make decisions for you while you are alive.

What is the difference between an Enduring Power of Attorney and a Will?

An Enduring Power of Attorney is only valid during the lifetime of the adult and ceases to be valid upon their death. The person granted authority in an Enduring Power of Attorney is referred to as the attorney.

A Will only takes effect after the will-maker dies. The person granted authority in a Will is referred to as an executor/executrix or can also be referred to as a personal representative or trustee.

What is the difference between an Enduring Power of Attorney and a Representation Agreement?

An Enduring Power of Attorney grants authority for decisions relating to financial and legal matters only.

A Representation Agreement grants authority for decisions relating to health care and personal care matters only. 

We are referring to Non-standard (section 9) Representation Agreements, which are the most common type. Standard (section 7) Representation Agreements can give authority to make both financial and health decisions, but are rarely used as they have limited power and are designed to be made for those who already have experienced a loss of mental capacity. For more information on this, please refer to our section on Representation Agreements.

Who should have an Enduring Power of Attorney?

An Enduring Power of Attorney is useful for:

  • People who travel often for work or pleasure
  • People who plan to be travelling when the sale of their home is completing
  • People who work jobs that may be considered dangerous
  • People who may eventually experience a loss of mental capacity
  • People who would like someone else to manage their legal and financial affairs

Example 1

Trevor lives in Chilliwack but works up north and lives in a camp for several weeks at a time.

He wants to make sure his parents can deal with any issues on his behalf while he is away such as paying his bills, doing his banking, dealing with his car insurance and doing his income taxes.

He decides to give his parents Enduring Power of Attorney so that they have the legal authority to do these things for him.

Example 2

Kevin and Sandy have had their house listed for sale for several months. They finally receive an offer to purchase their home, but the buyer wants the deal to close at the end of August.

Unfortunately, Kevin and Sandy have already booked their vacation to Mexico for the end of August and the tickets are non-refundable.

Kevin and Sandy want to accept the offer, but they also do not want to cancel their trip.

Kevin and Sandy decide to give their daughter Enduring Power of Attorney so she can sign all the necessary paperwork for the sale of their home while they are away.

Example 3

Robert just started a new job as an RCMP officer.

He is worried that if he gets hurt on the job, his wife will have trouble accessing his bank accounts and dealing with government agencies on his behalf.

He decides to give his wife Enduring Power of Attorney so that she can take care of things in case he gets injured and can no longer make decisions.

Example 4

Marilyn just had her 85th birthday and has started having some problems with her memory.

She visited the doctor, and the doctor informed her that she is showing early signs of dementia.

The doctor suggested that Marilyn should get an Enduring Power of Attorney, in case her dementia gets worse and she becomes incapable of managing her affairs and signing legal documents.

She decides to give her son Enduring Power of Attorney now, while she is still capable.

Example 5

Randy is 22 years old and works as a forklift operator.

Randy’s job pays him very well, but he gets easily frustrated and confused when it comes to dealing with banks, government agencies, insurance companies, or even his cell phone company.

His mother has always handled those things for him, but recently his bank stopped letting her do this because she does not have the legal authority to do it on his behalf.

He decides to gives his mother Enduring Power of Attorney so that his mother can continue to handle his financial matters without any resistance from the bank or any other place he deals with.

Choosing the attorney(s)

Short Answer:

Your attorney(s) should be trustworthy, capable of manages your finances, and available to act when needed.

Long Answer:

An Enduring Power of Attorney is an extremely important and powerful document. It gives the person named as the attorney full access and decision-making authority over your financial and legal affairs.

This includes things like banking, investments, and even the authority to sell your home. This is why choosing the right person to be your attorney is so important.

Your attorney should be someone you trust completely. As mentioned above, Enduring Power of Attorney gives your attorney access to your finances. If your attorney wanted to abuse that access, they could do a great deal of damage to your finances such as withdrawing money from your bank accounts or selling your property without your knowledge.

Legally, your attorney is always supposed to act at your direction and in your best interest. But if the attorney decided to act dishonestly, it can be difficult to stop them, especially if you become mentally incapable.

Your attorney should also be capable of handling your financial and legal affairs. If your finances are complex, you should ensure that your attorney is capable of understanding them and managing them.

Your attorney should also be available to act. If your first choice is someone who is extremely busy or constantly travelling for work, then you should consider appointing an additional attorney who will be more available.

Another thing to consider when appointing an attorney is age.

Your attorney must be at least 19 years old when you appoint them. Also, your attorney cannot be someone who provides care services to you in exchange for compensation or someone who works at a facility where you receive care services in exchange for compensation (e.g. care aide, nurse, etc.).

If you do not want to appoint a friend or family member as your attorney, you can appoint the Public Guardian and Trustee (a government corporation) or a trust company (many banks have trust services) to be your attorney.

In both cases, you should talk to them first and confirm they can act for you. You may also have to sign an agreement for compensation, as they will likely charge a fee for their services.

Appointing more than one attorney

Short Answer:

When appointing multiple attorneys, they can act jointly, separately, or successively.

Long Answer:

When appointing more than one attorney, you can decide whether they must act jointly (the attorneys must act together) or can act separately (each attorney can act alone) or successively (you have a first attorney who can act for you and a secondary or alternate attorney who can only act if the first attorney cannot).

It is important to note that even when the attorneys can act separately, they must still consult with each other and be in agreement when they use the Power of Attorney to act on your behalf.

Example 1

Sally wants to appoint both of her children as her attorneys, but she wants them to act together. She does not want either child to be able to act alone. She decides to appoint her children jointly. This means that each time one of her children wants to use the Enduring Power of Attorney, both children must act together.

Example 2

Sally wants to appoint both of her children as her attorneys, but they live in different provinces so she feels it might be difficult for them to act jointly.

She is confident that her children will consult with each other when using the Enduring Power of Attorney and will not act without the other’s approval, so she appoints her children separately.

This means that when her children use the Enduring Power of Attorney, either child can act alone.

Example 3

Sally wants to appoint her son as her attorney, but she also wants to appoint her daughter as an attorney just in case something happens to her son.

She wants her son to act first, and her daughter to only be able to act if her son can no longer act for her.

She decides to appoint her children successively, so that her son is her first attorney, and her daughter is an alternate (back-up) attorney.

Types of Power of Attorney
Power of Attorney

A non-enduring (non-durable) Power of Attorney can only be used while you are capable and becomes invalid when you become incapable. For most people, this defeats the purpose of having it, and they are rarely used. 

Enduring Power of Attorney

Short Answer:

An Enduring Power of Attorney can be used after a loss of capacity.

Long Answer:

An Enduring Power of Attorney is the most common type of Power of Attorney.

An Enduring Power of Attorney means that the authority of the attorney endures (continues) or begins after the adult has lost the capacity to make decisions sign legal documents.

In other jurisdictions, it is sometimes called a “Durable Power of Attorney”.

Example 1

Leonard recently retired and is planning to do a lot of travelling.

He would like his children to be able to manage his finances while he is away, and would also like them to continue to do so if he ever becomes incapable of doing it himself.

He decides to give his two children Enduring Power of Attorney so that they can manage his finances while he is capable and travelling, and also if he should ever become incapable.

Springing Power of Attorney

Short Answer:

A springing Power of Attorney can only be used after a specific event occurs (e.g. loss of capacity).

Long Answer:

A Power of Attorney can also be designed so that it can only be used when a certain event occurs, such as the loss of capacity to sign legal documents.

We call this a springing Enduring Power of Attorney because the authority of the Attorney “springs” into effect when it is proven that the adult has lost his or her capacity.

The event that triggers the authority of the attorney does not necessarily have to be a loss of capacity, but this is the most common event used for a springing Power of Attorney.

Example 1

Susan wants her daughter, Sally, to have the authority to manage her affairs, but only if Susan is no longer able to do it for herself.

Susan does not feel comfortable with Sally being able to access her bank accounts while Susan is still capable.

Susan decides to give Sally a springing Enduring Power of Attorney, in which Sally’s authority does not take effect until Susan loses her mental capacity and can no longer look after herself.

Limited or Restricted Power of Attorney

Short Answer:

Power of Attorney can only be used for specific things (or cannot be used for specific things).

Long Answer:

A Power of Attorney can also be designed so that the authority of the attorney is limited or restricted to only dealing with certain matters, or to a certain task such as accessing a bank account or selling a property.

This is sometimes called a restricted Power of Attorney or a limited Power of Attorney.

A restricted Power of Attorney can also be an Enduring Power of Attorney, depending on whether the Adult wants the authority to continue if they become incapable.

Example 1

Allen and Mary want their son to be able to pay their bills from their account if they become incapacitated, but they do not want him to be able to sell their home.

They decide to give him an Enduring Power of Attorney restricted to dealing with all legal and financial matters except selling their property.

Example 2

Allen and Mary want their son, Richard, to be able to tend to the sale of their home while they are away on vacation.

They decide to give Richard an Enduring Power of Attorney that is restricted to only the sale of the property.

They made sure it was also an Enduring Power of Attorney, just in case they were to have an accident during their trip.

What is “capacity” and how is it determined?

Short Answer:

When legal professionals speak of capacity or being capable, they are referring to a person’s ability to do something under the law, such as making an Enduring Power of Attorney. To make an Enduring Power of Attorney, a person must meet the capacity requirements under the Power of Attorney Act.

Long Answer:

When legal professionals speak of capacity or being capable, they are referring to a person’s ability to do something under the law, such as making an Enduring Power of Attorney.

The Power of Attorney Act of British Columbia clearly states the capacity requirements to make an Enduring Power of Attorney. The adult must:

  • Know what their assets are and their approximate value.
  • Be aware of their obligations to their dependents, such as their children.
  • Be aware that who they name as their attorney can do anything on their behalf in respect to their financial and legal affairs. Such as:
    • Paying bills
    • Making investments
    • They can’t make or change a Will.
  • Understand the value of your assets may decline under the management of your attorney.
  • Be aware that their attorney may misuse their authority.
  • Be aware that they can revoke the Enduring Power Attorney, as long as they still meet the capacity requirements.

The notary or lawyer will interview the adult and ask various questions to satisfy themselves that the adult meets the capacity requirements.

If an adult already has begun to suffer from medical conditions that affect their capacity (e.g. dementia) or if capacity is questionable, they may still meet the capacity requirements.

In these cases, the notary or lawyer may request a doctor’s letter confirming that the adult has capacity before proceeding.

What happens if a person becomes incapable and they do not have an Enduring Power of Attorney?

Short Answer:

If a person loses capacity and does not have an Enduring Power of Attorney, those wishing to represent that person will need to obtain a court order (committeeship) to do so.

Long Answer:

If a person does not have an Enduring Power of Attorney and they can no longer manage their financial affairs, it can be very difficult to look after things for them.

Banks, government agencies, utility companies, and other institutions are reluctant to provide information or access to a person’s accounts.

This can make paying bills, starting or stopping services, or dealing with Service Canada extremely challenging.

Committeeship

If you do not have an Enduring Power of Attorney for an adult and you need legal authority to manage their financial affairs, then you will need to obtain a court order from the Supreme Court of British Columbia.

This is called a “committeeship”.

There are two types of committeeships: committee of person (for personal and medical decisions), and committee of estate (for financial and legal decisions).

You can apply to obtain one or both committeeships.

To be appointed as a person’s committee, you must apply to the Supreme Court of British Columbia for an order under the Patients Property Act.

You will need sworn statements from two separate British Columbia doctors confirming that the adult is no longer capable of managing their affairs.

The process can take several months and can be quite expensive (normally lawyers are involved in making this type of application).

There is also a chance the court will reject your application if you do not meet their requirements or if another family member contests your application.

It is for these reasons that it is recommended to get an Enduring Power of Attorney while you are still capable, as it can save your family members from unnecessary challenges and costs resulting from not having it.

It also allows you to choose who will represent you, rather than letting the court decide.

Changing (or revoking) an Enduring Power of Attorney

Short Answer:

Changing an Enduring Power of Attorney normally involves revoking the existing Enduring Power of Attorney and making a new Enduring Power of Attorney with the desired changes.

Long Answer:

Changing an Enduring Power of Attorney normally involves revoking the existing Enduring Power of Attorney, and then making a new Enduring Power of Attorney with the desired changes.

If you have already made an Enduring Power of Attorney and you simply want to add a person (have an additional attorney), then we can do new Enduring Power of Attorney for that person and leave the existing Enduring Power of Attorney intact.

Unlike a Will, making a new Enduring Power of Attorney does not automatically revoke one that was previously made.

Example 1

Sally previously made an Enduring Power of Attorney that appointed her son as her attorney.

She recently had some issues with her son and has lost trust in him. She would now like her daughter to be her attorney instead of her son.

Sally decides to revoke the Enduring Power of Attorney that appointed her son and make a new one appointing her daughter.

Example 2

Sally previously made an Enduring Power of Attorney that appointed her son as her attorney.

Her son recently moved to Australia so Sally would like her daughter (who still lives in BC) to also be her attorney.

Sally decides to make a new Enduring Power of Attorney appointing her daughter so that both children will be her attorneys.

Changing or revoking an Enduring Power of Attorney requires that the adult have legal capacity at the time of the change or revocation and that written notice be delivered to each attorney.

How does an Enduring Power of Attorney end?

An Enduring Power of Attorney can end in several ways, including:

  • If the Adult dies
  • If the Adult revokes the Enduring Power of Attorney
  • If the Enduring Power of Attorney is terminated by the court
  • If the Enduring Power of Attorney is non-enduring and the adult becomes incapable

Additionally, the authority of an attorney can end in several ways, including:

  • If the attorney dies
  • If the attorney resigns
  • If the attorney’s authority is revoked by the adult
  • If the attorney is a spouse and the marriage ends
  • If the attorney becomes bankrupt
  • If the attorney becomes incapacitated
  • If the attorney is convicted of a crime of which the Adult was the victim

Revoking an Enduring Power of Attorney (or the authority or an attorney) requires that the adult have legal capacity at the time of the revocation and that written notice be delivered to each attorney.

What is "undue influence"?

Short Answer:

Undue influence is when somebody is using a position of authority to pressure you into signing something or giving them something. If we believe that you are being coerced or unduly influenced, we will not proceed.

Long Answer:

Undue influence is when somebody is using a position of authority to pressure you into signing something or giving them something.

This does not always involve a threat of violence. It could also involve an implied threat to withhold assistance or access to something you want.

If somebody else brought you to our office, we may ask them to leave the room so we can confirm that you are acting out of your own free-will and not being coerced or unduly influenced into making or changing an Enduring Power of Attorney.

If we believe that you are being coerced or unduly influenced, we will not proceed.

Example 1:

A friend you depend on to give you rides to your doctor’s appointments and pick up groceries is asking you to make an Enduring Power of Attorney.

They imply that if you do not make them your attorney, they will stop helping you.

Example 2:

You have already made an Enduring Power of Attorney naming your son as your attorney.

Your daughter asks you revoke it and appoint her as your attorney instead. She says that if you do not, then she will not let you see your grandchildren anymore.

Example 3:

You are on a fixed income and live with your son. Both of you know that you cannot survive on your own.

He asks you to give him an Enduring Power of Attorney. Although he does not make any threats, you feel pressured to do it because you do not want him to abandon you.

Process

We try to make the process of obtaining an Enduring Power of Attorney as easy as possible.

Quite often, it can be done within the span of a 30-minute appointment at our office.

All you need to bring to the appointment is some information (see below) about the attorney(s) you wish you appoint, and at least one piece of unexpired government-issued photo identification (e.g. driver’s license).

At the appointment:
  1. We will meet with you, explain the document and answer all questions. It is standard practice to meet with you alone to ensure there is no undue influence.
  2. We will ask you some questions to gather information and confirm legal capacity, including:
    1. Why you want an Enduring Power of Attorney.
    2. What your assets are and their approximate value.
    3. Information about your family (e.g. marital status, children, etc.).
  3. We will then take instructions:
    1. Who you wish to appoint and why?
    2. If you are appointing more than one attorney, whether they should act jointly, separately, or successively?
    3. Do you want any restrictions or conditions to be placed on the authority of the attorney(s)?
  4. If we can obtain all the required information, we will then prepare the document while you wait, review the document with you, and then witness the signing of the document by the adult and the attorney. Once the document is fully signed, you will be provided with an original Enduring Power of Attorney and some certified copies.

For the attorney(s), we will need to know the following:

  • Their full legal name
  • Their address
  • Their occupation
  • Their phone number and/or email address
  • Their relationship to you

If your attorney(s) are not able to attend the meeting, we can make arrangements for witnessing their signatures at another time.

 If an attorney is unable to attend our office and must sign with another notary or lawyer, we can arrange for the delivery of those documents to the attorney or their notary’s or lawyer’s office.

Please note that if the attorney signs at another notary’s or lawyer’s office, they will normally have to pay a fee there.

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Update May 2020

Our Chilliwack and Abbotsford offices remain open on an appointment-only basis as we do our part to practice social distancing.

Please note our Chilliwack office will be closed on Saturdays until further notice.

Our Hope location is closed until further notice.