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Power of Attorney

Power of Attorney

Karen G. Shin August 18, 2010

 

This article provides information only, not legal advice. If you have a legal problem or need legal advice, contact us at info@logoslaw.ca or call us at 604-294-0101.


What is a power of attorney?

A power of attorney is a document that appoints another person, called an “attorney,” to make financial and legal decisions for you.

A power of attorney can be very specific


For example, you may give your daughter a power of attorney just to cash your old age security pension cheques for you. In fact, you can get power of attorney forms for cashing these cheques at your local federal Service Canada office. Your bank can also give you a form if you need a power of attorney for a specific bank account.

A power of attorney can also be very general


If you wish, you can give your attorney very wide powers to deal with all of your assets.

 

There are specific rules for powers of attorney dealing with real estate


The Land Title Act requires the attorney to do certain things and follow certain procedures, and there are certain rules that apply. For example, a power of attorney dealing with real estate is only valid for three years from the date of signing, unless otherwise specified or unless it is an enduring power of attorney as described in the Power of Attorney Act.

 

Who should you appoint as your attorney?

 

Consider carefully who to appoint as your attorney and the powers you want to give. It’s important that you trust that person’s honesty and judgment. If you have no family member or friend that you can or want to appoint, you can appoint a respected professional such as your lawyer, accountant or trust company. As a power of attorney gives your attorney very broad power, it can cause you a lot of harm if misused.

Does the person you appoint have to act as your attorney?

 

No. Merely granting a power of attorney to someone (and even delivering the written document to them) doesn’t mean that this person has to act as your attorney if they don’t want to. The attorney doesn’t have to take any specific steps to say “no,” or to later decline to act if they no longer wish to be the attorney.

How do you end a power of attorney?

 

The most effective way to terminate a power of attorney is to give your attorney a written notice saying that their power has ended, and preferably also to destroy all originals or duplicates of the document (to prevent misuse by the terminated attorney). To cancel or revoke a power of attorney dealing with land, you must file a document called a “Notice of Revocation” in the Land Title Office where the land is registered. The court can also terminate a power of attorney – this might happen if your attorney abuses their power. It’s also possible to put an end-date in the document itself.

A power of attorney automatically ends in certain circumstances


It automatically ends when you die or if you become bankrupt. It also ends if you become mentally incompetent, unless you say that the power should continue, and then you’ve made an “enduring power of attorney.”

 

What is an enduring power of attorney?

 

An enduring power of attorney allows your attorney to make the necessary financial and legal decisions for you in case you become mentally incapable because of age, accident or illness. To make an enduring power of attorney, the document must say that the agreement will continue to be in effect if you’re no longer able to make decisions for yourself.

When is an enduring power of attorney useful?

 

An enduring power of attorney may help avoid having the court appoint a “committee” of one or more people to look after your legal and financial affairs in the event that you become mentally incompetent. A committee appointment is much more expensive than making an enduring power of attorney.

What decisions can be delegated with a power of attorney?

 

A power of attorney is used to delegate financial and most legal decisions. This is true for both a power of attorney and an enduring power of attorney. But your attorney cannot make medical or health care decisions for you, such as consenting to surgery or dental work for you. For these decisions, you need to make what’s called a “representation agreement.”

Summary

 

A power of attorney is a document that allows you to give another person, called the attorney, the authority to act for you in financial and legal matters. The power can be as specific or as general as you wish. But unless you use an enduring power of attorney, it will automatically end if you become mentally incompetent. A representation agreement, on the other hand, can cover personal care and health care decisions, as well as certain financial and legal decisions, if you’re unable to make them on your own.

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