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Powers of Attorney

WHAT IS A POWER OF ATTORNEY?

A Power of Attorney is a document signed by a Grantor, appointing an Agent (the “Attorney”) and giving that Agent authority to carry out certain tasks for the Grantor.

WHAT IS AN ENDURING POWER OF ATTORNEY?

Under traditional Common Law, a Power of Attorney ended when the Grantor became disabled. This means that as originally conceived, Powers of Attorney were poor tools to help the elderly.

In British Columbia, the Power of Attorney Act, (R.S.B.C. 1996) c.370 adopted legislation to make powers of attorney useful in an Elder Law context. It now provides for a Power of Attorney containing language to the effect that the Power of Attorney is intended to survive the disability of the Grantor; the Power of Attorney will stay effective until the person dies.

Currently the duties and obligations of the Attorney are dealt with by legislation.

WHAT PREVENTS MY AGENT UNDER A POWER OF ATTORNEY FROM STEALING MY ASSETS?

The Attorney under a Power of Attorney is under a high legal duty to act in the interest of the Grantor of the Power of Attorney. This legal duty is called a “Fiduciary Duty”. It is a duty of loyalty and conscientiousness that arises out of a special relationship of trust and confidence which should exist between Grantor and Agent. It is similar to the duty between lawyer and client. If you are concerned that an unscrupulous Agent may steal your assets, you may wish to speak to your lawyer regarding the safekeeping of your Power of Attorney.

HOW DOES A POWER OF ATTORNEY COMPARE TO A HAVING AN INTER-VIVOS OR LIVING TRUST?

There is no law that says people have to do business with the Attorney under your Power of Attorney, but because your Trustee becomes the legal owner of your property, they have to deal with your Trustee. The Attorney under a Power of Attorney cannot make decisions after your death, but a Trustee can.

DOES A POWER OF ATTORNEY HAVE TO BE REGISTERED?

Currently there is no central registry in British Columbia for Powers of Attorney. If your Agent has to handle a real estate transaction for you, the Power of Attorney will need to be registered at the time of the transaction in the appropriate Land Title Office.

WHEN DOES A POWER OF ATTORNEY END?

You can specify an ending date in your Power of Attorney. If you don’t, and its not an Enduring Power of Attorney it ends when you become incapable. If it is enduring it ends when you die. You may revoke your Power of Attorney at any time (as long as you are still competent). A Power of Attorney would also end on the appointment by a Court in British Columbia of a Committee of the Estate of the Grantor.

IS A POWER OF ATTORNEY A SUBSTITUTE FOR HAVING A WILL?

No. A Power of Attorney is only valid during your lifetime, and the authority ends immediately upon your death. Upon your death, your agent will lose their decision- making power for managing your assets, and that power will pass to your personal representative or Executor. Do not rely upon a Power of Attorney as a Will substitute.