A Power of Attorney is a legal document that gives someone else the authority to make legal and financial decisions on your behalf. Almost anything you can do legally, your attorney will be able to do for you.
In a Power of Attorney document, the person giving the power is called an “adult” or “donor”. The person who is given the power is referred to as the “attorney” or “representative.” The term “attorney” in this context does not mean lawyer, it simply refers to the person you appoint to make legal and financial decisions on your behalf in any situation when you cannot act for yourself.
The short answer: it is a document that is used to give someone else the power to handle your financial and legal affairs.
The term “Enduring” means that the Power of Attorney can be exercised after you have lost capacity (after you are no longer able to make decisions for yourself).
This is usually the reason why people choose to make a Power of Attorney, which is why most Powers of Attorney that we prepare are Enduring Powers of Attorney.
The short answer: “Enduring” means that it can be used after you are unable to make decisions for yourself.
Any adult can make a Power of Attorney as long as they are capable of understanding the nature and consequences of the Power of Attorney.
Specifically, you must be capable of understanding the following:
The short answer: yes, as long as you are 19 and have full capacity to sign legal documents.
Yes it can. You can revoke an entire Power of Attorney, or you can revoke the authority of a specific attorney. Whether revoking an attorney’s authority or the entire Power of Attorney, you must provide written notice of the revocation to all of the attorneys named in the Power of Attorney.
The short answer: yes it can.
Yes they can. They can lose their authority in the following ways:
The short answer: yes they can.
No they do not. They can resign as the attorney at any time by providing you with written notice. If you have already lost capacity, they can give the written notice to your spouse, close relative or close friend.
The short answer: no they do not.
A Power of Attorney can end in the following ways:
Your attorney can make decisions on your behalf and do anything that you can lawfully do by an agent. This includes (but is not limited to):
While a Power of Attorney gives a wide range of powers, perhaps the most important of them is the ability to deal with property. A Power of Attorney allows your attorney to sign property transfer documents in your place, whether it is a sale or even a purchase with a mortgage. You can have peace of mind knowing that someone can legally represent you in these matters when you are incapable of doing so.
The short answer: almost anything that you can do legally and financially.
There are certain things an attorney cannot do for you, such as making a Will. Powers of Attorney can also be limited at your discretion to deal with specific issues, such as the sale of a property, or you can exclude certain powers altogether.
It is a common misconception that a Power of Attorney can be used to make decisions regarding your health care. In British Columbia, a separate document called a Representation Agreement is needed to give authority over health care decisions.
The short answer: making your Will, making decisions regarding your health care, among other things.
A Power of Attorney is a document that enables you to appoint one or more people (attorneys) to manage your financial and legal affairs while you are alive. A Power of Attorney is in effect only while you are alive, and is no longer valid after your death.
A Will is a document that enables you to appoint one or more people (executors) to manage your estate upon your death, and instructs them how to do so. A Will can only take effect after your death.
The short answer: A Power of Attorney is for while you are alive, whereas a Will is for after you pass away.
An attorney is appointed under a Power of Attorney, and can only act for you while you are alive. The attorney’s authority ceases upon your death.
An executor is appointed under a Will, and can only act on your behalf after you pass away. The executor’s authority can only take effect after you pass away.
The short answer: an attorney is appointed under a Power of Attorney whereas an executor is appointed under a Will.
Yes you can. When appointing multiple attorneys, you can have it so that they may act separately, or so that they have to act together (jointly).
If you wish, you may also have it so that a second attorney can only act if the first attorney is unwilling or unable to, or you can assign different areas of authority to different attorneys.
The short answer: yes.
Your Attorney can be anybody you choose, as long as they meet the following criteria:
Your attorney can be your spouse, child, parent, sibling, friend, or any combination of these people. You cannot appoint someone who provides you with personal or health care services (ie. nurse, doctor or health care assistant), or someone who works at a residence where you receive personal or health care (ie. an employee at your retirement or nursing home).
If you wish, you may appoint the Public Guardian and Trustee of British Columbia or a bank to be your attorney, however, these institutions may charge a fee for their services.
The short answer: anyone over the age of 19 who does not provide you with personal or health care services for compensation.
If a person falls into one of the following categories, they cannot be your Attorney:
The short answer: anyone under the age of 19, or who provides you with personal or health care services for compensation.
There are three things you should consider when appointing an attorney
A Power of Attorney is a powerful document that gives a wide range of financial and legal authority over your affairs. While it can be extremely useful, it also has the potential to be abused if given to the wrong person. This is why trust is an important factor to consider when choosing an attorney.
Capability is equally important. Your attorney must be intelligent and knowledgeable enough to deal with your financial and legal affairs. If they lack specific knowledge of your affairs, they should at least be capable of seeking out information or assistance to help them manage your affairs.
The availability of your attorney should also be considered when choosing an attorney. Ideally, you should try to appoint someone who lives within driving distance and who can make time to act as your attorney if necessary. If this is not an option for you (as most people work and have busy lives), that is okay. Having an attorney who has limited availability is better than having no attorney at all (as long as you trust them and they are able to deal with your affairs).
The short answer: someone you trust, who is smart enough to deal with your affairs, and who does not live too far away.
Appointing a Power of Attorney will give you and your family peace of mind, knowing your affairs can be managed if you ever become unable to manage them yourself.
We have experienced an increase in demand for Powers of Attorney in recent years, and I believe it is due to growing awareness about the turmoil that can result from not having one in place. Once it is done, our clients often say that they feel like a load has been taken off their shoulders. They feel more secure knowing that their affairs will be properly handled if something should ever happen to them.
The security is not only for you, but also for your family. When you are incapacitated, it is often your family who suffers as they struggle to manage your affairs. Having a Power of Attorney ensures that your family will have fewer obstacles to navigate what is already a stressful and emotional situation.
The short answer: if you wait until you need it, chances are that it will be too late to get one.
If you lose mental capacity and do not have a Power of Attorney, someone will need to be appointed by the court to manage your financial and legal affairs. In British Columbia, this person is called a Private Committee (pronounced “caw-mi-tay”).
To become a Committee, an application must be made to BC Supreme Court for an order under the Patients Property Act. The applicant will need sworn statements from at least two British Columbia doctors that state that you are mentally incapable. This process can take six months to one year, and can cost anywhere from $5,000 to $10,000 or even more in some cases.
If and when the applicant is appointed as your Committee, their powers will be decided by the court. They may be restricted to certain matters or they may require the Committee to obtain the court’s consent when performing duties such as selling property.
If you become capable again, then either you or your committee will need to apply to the court to cancel the Committeeship. Until then, your Committee will have full control over your affairs.
The short answer: nobody will be able to deal with your financial and legal affairs until they are appointed by the BC Supreme Court.
A Representation Agreement is a legal document that appoints one or more persons to make decisions regarding your health care if you should ever be unable to make or communicate those decisions yourself.
The person who makes the Representation Agreement is referred to as the “adult” and the person or persons appointed are referred to as “representatives”.
The short answer: it is a document you can use to appoint someone to make your medical decisions for you.
A Representation Agreement gives authority to another person to make decisions regarding health and personal care, whereas a Power of Attorney gives authority to make decisions regarding legal and financial matters.
A Representation Agreement made under section 7 of the Representation Agreement Act, also referred to as a “Standard” Representation Agreement, gives authority for most health and personal care decisions, as well as for “routine financial affairs”, but this authority is more limited than a Power of Attorney and could not be used to sell real estate on behalf of the adult.
The short answer: a Power of Attorney is for legal and financial decisions, whereas a Representation Agreement is for health care decisions.
A Representation Agreement is where you appoint a person or persons to make health and personal care decisions for you.
An Advance Directive, commonly referred to as a Living Will, is a document that is a direct communication from yourself to your health care provider, where you state specifically what treatments or procedures you consent to or do not consent to. For example, if you were strongly opposed to blood transfusions, you could state that in your Advance Directive and your health care provider would be obligated to respect your wishes.
The short answer is: a Representation Agreement is where you give power to someone else to make decisions for you, whereas an Advance Directive is a personal statement from you about what treatments you want (or do not want).
There are 2 types of Representations Agreements: Standard (made under section 7 of the Representation Agreement Act), and Non-standard (made under section 9). A Non-standard Representation Agreement is commonly referred to as an Enhanced Representation Agreement.
A Non-standard (Enhanced) Representation Agreement grants the widest range of decision making-authority regarding health and personal care. It gives the representative the authority to make decisions about various aspects of the adult’s life, including the following:
While a Non-standard Representation Agreement provides the widest range of authority over health and personal care, it does not give any authority over financial or legal matters.
The short answer: a Non-standard Representation Agreement gives the most power for personal and health care decisions, but no power for financial decisions.
An Enhanced Representation Agreement is recommended for people who have full capacity to enter into contracts (those who are not suffering from any mental disabilities, mental illnesses or mental degenerative disorders). Due to the wide range of authority it grants, full mental capacity is required to enter into Enhanced Representation Agreement.
The requirement is that the adult is capable of understanding the nature and consequences of the Agreement, including all of the different areas of authority that the Agreement grants to the representatives.
The short answer: the Non-standard Representation Agreement is meant for people who currently have full mental capacity.
There are two types of Representations Agreements: Standard (made under section 7 of the Representation Agreement Act), and Non-standard, sometimes referred to as “Enhanced”, (made under section 9).
In a Standard Representation Agreement, health-care decision-making is limited to:
A Standard Representation Agreement cannot grant authority for preservation of life decisions.
In a Standard Representation Agreement, you can grant authority to your representative to make routine financial decisions in addition to health and personal care decisions. This should not be mistaken for Power of Attorney, however. The financial decision-making ability granted under a Representation Agreement includes:
For a full list of the financial powers granted under a Standard Representation Agreement, have a look at section 2 of the Representation Agreement Regulation of British Columbia.
Unlike a Power of Attorney, the financial authority under a Standard Representation Agreement does not include selling or buying real estate, nor does it give authority act as a company’s officer or director on the adult’s behalf.
The short answer: A Standard Representation Agreement gives some power for legal and financial decisions, but less power for personal and health care decisions.
A Standard Representation Agreement is designed for those who have diminished mental capacity (e.g. someone with Alzheimer’s disease or dementia). The mental capacity requirements for this type of Agreement are much lower than for a Non-standard (Enhanced) Representation Agreement.
The requirements are that the adult:
The short answer: the Standard Representation Agreement is designed for people who have mental disabilities.
In a nutshell, a Standard Representation Agreement provides for most health and personal care authority and some financial authority, but does not provide authority to make decisions regarding the preservation of life. It is designed for those with diminished capacity.
A Non-standard (Enhanced) Representation Agreement provides authority for all decisions relating to health and personal care, including preservation of life. It is designed for those with full capacity.
The short answer: Non-standard is for all health care decisions and Standard is for most health care and most legal and financial decisions.
The reasoning behind this is quite simple. If someone has the capacity to enter into an Non-standard (Enhanced) Representation Agreement, then it is assumed that they have the capacity to grant a Power of Attorney, which can provide a greater range of financial authority.
On the other hand, if someone has diminished capacity, they will likely be unable to grant a Power of Attorney; however, they may still have the capacity to enter into a Standard Representation Agreement, which will provide for at least some financial authority.
The short answer: a person who is able to make a Non-standard Agreement is able to make a Power of Attorney. A person with diminished capacity will usually be unable to make a Power of Attorney.
The financial decision-making ability granted under a Representation Agreement is limited to “routine management of the adult’s financial affairs”
Routine financial affairs include:
The representative can also do a multitude of other things including obtaining legal services, however, unlike a Power of Attorney, the representative cannot buy or sell real estate on behalf of the adult, nor can the representative act as director or officer of a company on behalf of the adult.
The short answer: almost all the powers that a Power of Attorney gives, except for dealing with real estate and corporate matters.
Minor health care means:
Major health care means:
Personal care means:
Your representative can be one or more persons who are over the age of 19 or the Public Guardian and Trustee. It may also be a credit union or trust company, but they will be limited to financial and legal decisions and will not be able to make decisions regarding health or personal care.
There is one important note to make here regarding standard Representation Agreements. If a Standard Representation Agreement gives financial and legal authority and the representative is not a spouse, a trust company, or the Public Guardian and Trustee, then the Adult must appoint at least two joint representatives or a single representative and a monitor.
In other words, in a Standard Agreement, if there is only one representative, and that representative is not a spouse, a trust company, or the Public Guardian and Trustee, the Agreement will still be valid, but only for health and personal care (not for financial and legal authority).
The short answer: anybody over the age of 19.
The following people cannot be your representative:
If a representative falls into one of these categories, but is also a spouse, parent or child of the adult, then these restrictions do not apply.
For example, if your daughter is a nurse at the hospital where you receive health care services, she can still be your representative; however, if a nurse at your hospital is not your child, parent or spouse, he or she cannot be your representative.
The short answer: anybody who provides you with health care services for compensation.
There are three important factors to consider when appointing a representative:
When it comes to appoint someone to represent you, regardless of the area of authority, trust is always the most important factor in choosing your representative. You have a general sense of trust in your representative. Additionally, you should also trust that they will act in your best interest. When it comes to tough decisions, such as preservation or termination of life, you should be able to trust that your representative will follow your wishes, even if it may conflict with their own.
Capability is just as important, as your representative needs be intelligent and knowledgeable enough to deal with the issues and decisions that may arise when exercising his or her authority. If your representative does not have knowledge in the areas of authority, your representative should at least be capable of seeking out information and assistance to help him or her in acting for you.
Proximity is also important, as your representative needs to be available to act for you. It is best to appoint someone who lives within driving distance and who can make time to deal with these issues if necessary. If this is not an option for you (as most people work and have busy lives), that is okay. Any representative is better than no representative (as long as you trust them and they are able to deal with your affairs).
The short answer: your representative should be someone who is smart, trustworthy, and does not live too far away.
If you lose capacity and do not have a Representation Agreement, and decisions need to be made regarding your health care, then typically either the health care provider will make those decisions. The health care provider may appoint someone called a “Temporary Substitute Decision Maker” to assist in making certain decisions. There is ranked list that is used when choosing the Temporary Substitute Decision Maker:
The Temporary Substitute Decision Maker must be 19 years of age, have had contact with the adult in the past 12 months, have had no disputes with the adult, and be capable and willing to comply with the legal requirements of the role.
If there is a particular person who wishes to make decisions, but who is not the ranking person on the list, or the health provider will not appoint them, then that person can they apply for a Committee of Person (Committeeship) through the Supreme Court, which will allow that person to make all decisions. This process can be expensive and can take several months.
The short answer: the health care provider may appoint a Temporary Substitute Decision Maker, or the person wishing to make decisions must apply to the Supreme Court for a Committeeship.
A Will is a legal document where you can formally state:
The short answer: A Will is a document that states what you want to happen to your assets after you die.
A Joint Will refers to a document that basically combines the Wills of two people into a single document. Joint Wills are not recognized under British Columbia law.
Rather than making a Joint Will, most couples create Mirror Wills. Mirror Wills are two separate Wills that are identical in all respects. For example, a husband and wife can make mirror Wills where they name the each other as executors, the same alternative executor, same guardian for their children, and have the same distribution of the estate.
The short answer: a Joint Will is two wills combined into one, and they are not valid in British Columbia.
This is referred to as intestacy. When a person dies intestate (without a valid Will), the law will determine how your estate will be distributed.
If you are married and have children, your spouse will get a portion, and the remainder will be divided among your spouse and children.
If you do not have a spouse, then everything will be divided among your children.
If you do not have a spouse or children then your estate will be divided equally between your parents.
If you do not have a spouse, children, or parents then everything goes to your siblings.
If your do not have a spouse, children, parents, or siblings then everything goes to your nieces and nephews.
For more details, please have a look at an article I wrote recently on this subject.
The short answer: if you die without a Will, government laws will determine who gets your assets.
In most cases, your executor will need to apply to the court for “Letters Probate”.
Letters Probate is an order given by the court that officially appoints the executor for your will.
Your chosen executor will submit a copy of the Will along with a statement of your assets and liabilities to the court and a judge will review it to ensure that it is valid and that the person applying for Letters Probate is the person who is named in the Will as the executor.
After being granted Letters Probate, your executor will have the official authority of the courts to carry out your wishes contained in your Will.
The short answer: your executors will have to “probate the estate”.
Probate fees are the fees paid to the court when probating an estate and are based on the value of your estate. They must be paid before your executor is granted Letters Probate.
If the estate is worth less than $25,000.00, probate fees are waived. If the estate is worth more than $25,000.00, then there is a basic application fee of $208 dollars, as well as an additional fee that is calculated based on the gross value of the estate.
The short answer: probate fees are fees that are to be paid before your estate can be distributed.
Certain assets do not form part of your estate and are therefore not subject to probate fees. These assets are:
The short answer: jointly owned assets and assets with designated beneficiaries are not subject to probate fees.
Under the current law, if your estate is worth more than $25,000 (after funeral expenses are paid) and you die with a Will, your estate will need to be probated.
If your estate is worth less than $25,000.00, it is not legally required to probate your estate.
This being said, there are a variety of circumstances that may make probate either necessary or not necessary regardless of the value of the estate. To determine if an estate needs to be probated, it is recommended that you seek the advice of a notary or lawyer.
The short answer: no, probate is not always required.
An executor is the person you name in your Will who will probate your estate. He or she will be your personal representative after you die and will be responsible for paying your debts and distributing your estate according to your Will.
The short answer: The executor is the person who manages your affairs after you die.
A Power of Attorney is a document that allows you to appoint one or more persons to legally represent you while you are alive.
A Will describes both who will represent you and how you want your estate distributed, but only upon your death.
The short answer: A Power of Attorney is for while you are alive, while a Will is for after you pass away.
Your estate is all of your assets (things you own) and liabilities (debts) upon your death.
Residue refers to what is left over after your debts and specific gifts are paid out of your estate.
If you have no specific gifts (e.g. cash gifts to people or charity), then your residue is everything that is left over after your debts are paid.
Generally speaking, any assets that are not jointly owned (e.g. property held in joint tenancy) or do not have designated beneficiaries (e.g. life insurance policies and RRSPs) will form your estate.
The short answer: your assets are your estate.
Jointly held assets and any assets with designated beneficiaries are not considered part of your estate and will therefore not be dealt with by your Will.
Jointly held assets are anything that you own jointly with someone else who has the “right of survivorship”. Examples of this is include real property (i.e. houses) owned in joint tenancy and jointly held bank accounts.
Assets with designated beneficiaries are assets where you can decide who will immediately receive it upon your death regardless of whether you have a Will or not. Examples of assets with designated beneficiaries are life insurance policies, RRSPs, Tax-Free Savings Accounts, and some financial investments portfolios.
The short answer: anything you own jointly with another person and anything you own that immediately goes to someone else upon your death will not be part of your estate.
That is entirely up to you. After your debts are paid out of your estate, the residue can be divided as you see fit. That being said, some distributions may invoke a legal claim from spouses, children, or creditors and this should be considered when deciding how to divide your estate.
You can name people or charities or a mixture of the two. You should also think of alternate beneficiaries who will receive your estate if your primary beneficiaries predecease you. Most people name their spouse and children as the first people, with grandchildren, relatives or charities as alternates.
The short answer: however you like, within reason.
Yes, however the child may contest (challenge) the Will in court and request a larger share of your estate.
The short answer: yes you can, but there may be consequences.
Yes, however, the disinherited child may contest (challenge) the Will in court and request a share of your estate.
The short answer: yes you can, but there may be consequences.
An unequal distribution or disinheritance can cause the unhappy child to contest (challenge) the Will.
In British Columbia, we have a statute called the Wills Variation Act that allows spouses or children who feel that they have not been fairly provided for under a Will to apply to the court for a larger share of the estate.
Just because a spouse or child was left out or received a smaller share of the estate, does not mean they will get more, however. The judge will look at a number of factors to determine whether the Will should be varied (changed), such as the relationship between the claimant and the deceased, and the moral and legal responsibility owed to the claimant by the deceased.
Legal and moral responsibility is owed to spouses and minor and adult disabled children. There is no legal responsibility owed to adult children, however the judge may determine moral responsibility depending on the size of the estate, the financial circumstances of the child, and the relationship between the child and the deceased. Moral responsibility is based on reasonable expectations and community standards of what a sensible person would normally do in those circumstances.
In the case of disinheritance, the reasons for doing so must be valid and rational (e.g. estrangement). If the reasons offend community standards, the disinheritance will most likely not be permitted (e.g. disinheriting a child due to their sexual orientation).
When giving a child an unequal share or disinheriting a child, it is always a good idea to put your reasons in writing and keep that with the Will so that your executors will have evidence of your reasons. This will assist them if the Will is ever contested in court.
The short answer: that child can ask for the court for a larger share of your estate.