Considerations for the Adult Before Making an Enduring Power of Attorney

A power of attorney is a legal document which creates an agency relationship between the person appointing (the “principal” or “donor”) and the appointee (the “agent” or “attorney”). It is a basic principle of agency law that an agent may only take steps authorized by the principal. Thus, where the principal becomes unable to direct the attorney, either because of physical or mental incapacity, the common law does not permit the attorney to continue to act under the terms of the power of attorney.

There is an important statutory exception to this rule: the attorney may continue to act if the power of attorney authorizes the attorney to act when the principal is incapable. This is known as an “enduring power of attorney” and is a popular tool for an adult to plan for substitute decision making in the event of a future incapacity.

On September 1, 2011, significant changes were made to the British Columbia Power of Attorney Act (the “Act”) to govern enduring powers of attorney. While parts of the Act simply “codify” accepted laws and practices developed by the courts, other parts are new. The provisions in the Act will apply to all enduring powers of attorney, but there are “transitional” provisions which recognize enduring powers of attorney made before September 1, 2011. In other words, it will not be necessary to replace existing enduring powers of attorney (although it may be wise to update them, if possible).
It is important for both the person considering an enduring power of attorney (referred to in the statute as the “adult”) and the attorney to understand how the Act affects the creation and use of an enduring power of attorney.

This article provides general information only. We recommend that the reader seek legal advice from a knowledgeable lawyer before making an enduring power of attorney, and when questions arise during the exercise of authority given in an enduring power of attorney.

CONSIDERATIONS IN MAKING AN ENDURING POWER OF ATTORNEY

This article discusses considerations for the adult who wishes to have an enduring power of attorney. Click here for a discussion of considerations for an attorney.

CHOOSING THE RIGHT ATTORNEY

You should of course choose a person you trust to act as your attorney. You should also be aware that the Act prohibits certain persons from acting as an attorney. They include:

• An individual who provides personal care or health care services to an adult for compensation unless the individual is a child, parent or spouse of the adult; and
• An employee of a facility in which the adult resides and through which the adult receives personal care or health care services unless that person is a child, parent or spouse of the adult.

This new prohibition will not apply to enduring powers of attorney signed before September 1, 2011,

CHOOSING MORE THAN ONE ATTORNEY

The Act permits an adult to appoint more than one attorney to share the same authority. Different attorneys may also be allotted different areas of authority. (While “dividing the labour” is an appealing concept, adults should consider whether it will unnecessarily complicate the management of his or her financial affairs.)

Where there is more than one attorney appointed to share the same authority, the Act requires that they act unanimously unless the enduring power of attorney sets out:

• The circumstances in which the attorneys do not need to act unanimously; or
• How a conflict between the attorneys is to be resolved; or
• That the additional attorney appointed is an alternate who will only act if certain conditions are satisfied.

WHEN AN ATTORNEY MAY ACT

The Act recognizes that an adult may have a “springing” enduring power of attorney, that is, one in which the authority of the attorney will only be triggered by a defined event. The enduring power of attorney must state how and by whom the event is to be confirmed.
While ensuring that an enduring power of attorney will not be used until an adult’s incapacity has appeal, there are some challenges in a springing power of attorney. Identifying the event and how it will be confirmed may be difficult.

For example, an adult may wish to rely on a medical opinion of incapacity to trigger the enduring power of attorney. However, if the adult experiences only diminished or periodic capacity, will a physician provide the opinion? And where the opinion is provided, is this a document which the adult will wish to have third parties see? (Third parties are unlikely to accept the attorney’s authority without evidence that the “event” has occurred.)

Although springing enduring powers of attorney may be useful in some circumstances, we will generally continue to recommend that the enduring power of attorney takes effect immediately but is held in safekeeping until the adult directs its release or a physician provides an opinion of incapacity.

AUTHORITY GIVEN TO ATTORNEYS

As an enduring power of attorney is designed to authorize a substitute for the decision-making of the adult, it almost always includes the power to do “anything that I could lawfully do”. Despite this broad power, there are many things that an attorney is not permitted by law to do, such as make a will for the adult or give away the adult’s assets.

The Act sets out clearly what an attorney may and may not do (click here for details of the attorney’s powers and duties). The Act also permits the adult to choose to “opt out” of some of the restrictions on an attorney. For example, the Act stipulates that an attorney must make investments in accordance with the Trustee Act (that is, only prudent investments). Where the adult has investments which may not be considered prudent, the adult may wish to ensure that those investments remain. In that case, the enduring power of attorney should direct the attorney to continue to hold the investments.

Another example is gifting. An adult may routinely make monetary gifts to family members, be providing ongoing financial support to family members or others, or have a charitable giving plan. Unless specifically authorized in the enduring power of attorney, the ability to continue such gifting is compromised.

Drafting the appropriate provisions for your circumstances is best handled by a lawyer familiar with this area of law.

COMPENSATION FOR ATTORNEYS

The Act provides that an attorney must not be compensated for acting unless there is an express authorization in the enduring power of attorney, and an “amount or rate” of compensation is specified.

The adult must consider whether to include provisions for compensation. Failure to do so may result in an attorney refusing to act, or resigning if the task becomes too onerous.

Where compensation is to be paid the amount or rate must be stated. While an “amount” is straightforward, it may be difficult to anticipate: for example, $200 per month may be too little or too much, depending upon the duties of the attorney, the complexity (or lack thereof) of the adult’s financial affairs, and the length of time the attorney acts.

The alternate is a “rate”. Where the attorney is a professional, his or her hourly rate may be the appropriate compensation. For individuals, choosing an hourly rate (for example, $15 per hour) may be attractive, but consideration should be given to the fact that the enduring power of attorney may not be “activated” for many years, at which time the rate chosen may be inadequate.

Generally, we expect to see the statutory rates for a trustee under the Trustee Act of British Columbia, used as rate for compensation. These rates are:

• An annual income fee of up to 5% of the income earned; and
• An annual care and management fee of .4%, calculated on the average value of the property.