On September 1, 2011, certain provisions of the Adult Guardianship and Planning Statutes Amendment Act, 2007 (the “Act”) came into effect, resulting in amendments to various statues relating to incapacity planning, including the Power of Attorney Act (the “POAA”). As a result of the Act, two new parts have been added to the POAA: Part 2 (ss. 10-31 of the POAA), entitled “Enduring Powers of Attorney”, and Part 3 (ss. 32-42 of the POAA), entitled “General Matters Respecting Enduring Powers of Attorney”. This article will highlight some key changes to enduring powers of attorney under Part 2 of the POAA. While many of the amendments reflect practices already in use by many lawyers, the changes provide further clarity with respect to the rules regarding the making and use of Powers of Attorney and Enduring Powers of Attorney.
Enduring Powers of Attorney under the POAA
The definitions which apply to Parts 2 and 3 of the POAA are set out at section 10, where “enduring power of attorney” (“EPOA”) is defined as follows:
“enduring power of attorney” means a power of attorney
(a) in which an adult authorizes an attorney to (i) make decisions on behalf of the adult, or (ii) do certain things in relation to the adult’s financial affairs, and (b) that continues to have effect while, or comes into effect when, the adult is incapable.
An “adult”, defined as an individual who is 19 years of age or older, may use an EPOA to grant general or specific powers to an attorney. However, the powers granted under an EPOA are limited to the adult’s “financial affairs”, defined in section 10 of the POAA as including “an adult’s business and property, and the conduct of the adult’s legal affairs”. The adult must state in the EPOA that the attorney’s authority continues despite the adult’s incapability (s.14(b)) in addition to specifying whether the attorney may exercise his or her authority while the adult is capable of making decisions about the adult’s financial affairs (s. 14(1)(a)(i)) or whether the attorney’s authority may only be exercised while the adult is incapable of making such decisions (s. 14(1)(a)(ii).
Capacity (ss. 11-12 of the POAA)
Section 11(1) of the POAA creates the presumption that an adult is presumed to be capable of making decisions about their own financial affairs and understanding the nature and consequences of making, changing or revoking an EPOA. The presumption applies “until the contrary is demonstrated”. While overcoming the presumption still remains problematic, Section 12(2) of the POAA lists a number of factors to test whether an adult is capable of understanding the nature and consequences of the proposed EPOA; if the adult is incapable of understanding all of the factors listed in Section 12(2), then the adult lacks the capacity to make an EPOA.
Execution (ss. 16-17 of the POAA)
Generally, the EPOA must be in writing and signed and dated by the adult in the presence of two witnesses, both of whom must also sign the EPOA in the presence of the adult (s. 16(1)). It should be noted that if a witness is a lawyer or BC notary, only one witness is required (s. 16(4)). Section 16(6) of the POAA lists certain persons prohibited from acting as a witness to the signing of an EPOA (s. 16(6)). If the adult is physically incapable of signing the EPOA, it may be signed by another person on the adult’s behalf provided that the adult is present and directs that the EPOA be signed, and the person’s signature is witnessed in accordance with s. 16(1) (s. 16(2)). Witnesses to the signing of the EPOA and persons prohibited from acting as a witness pursuant to section 16(6) are prohibited from signing an EPOA on behalf of an adult. Prior to September 1, 2011, an EPOA was effective once it had been signed by the adult, and the signature of the attorney was not required. Now, before the attorney may exercise his or her authority, he or she must also sign the EPOA in the presence of two witnesses (s. 17(1)). However, the attorney is not required to sign the EPOA in the presence of the adult or any other attorney (s.17(2). If an attorney has signed the EPOA they are obligated to provide notice in the event they elect to resign from their duties as attorney (s. 25(2)). If the adult is incapable of making decisions at the time the attorney resigns, the attorney is then required to give written notice of the resignation to a spouse, near relative or close friend of the adult (s.25(3)).
Duties of Attorney (s. 19 of the POAA)
The duties of an attorney are prescribed by Section 19 of the POAA, and include the duty to act honestly and in good faith (s. 19(1)(a)), the duty to act within the authority given by the EPOA and under any enactment (s. 19(1)(c)) and the general duty to act in the adult’s best interests, taking into account the adult’s current wishes, known beliefs and values and any directions set out in the EPOA (s. 19(2)). In addition, the new POAA now requires attorneys to keep and produce certain prescribed financial records, which are described in s. 2 of the Power of Attorney Regulation. The standard of care for an attorney acting under an EPOA is that of a “reasonably prudent person” (s. 19(1)(b)).
The Power to make Gifts or Loans (s. 20 of the POAA)
Pursuant to Section 20 of the POAA, an attorney may make a gift, or loan or charitable gift from the adult’s property if the power to do so is expressly provided in the EPOA or, in the absence of express authority, if the following three conditions are met (ss. 20(1)(a)-(c)):
(a) the adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult’s dependants, and to satisfy the adult’s other legal obligations, if any,
(b) the adult, when capable, made gifts or loans, or charitable gifts, of that nature, and
(c) the total value of all gifts, loans and charitable gifts in a year is equal to or less than a prescribed value (see. s. 3 of the Power of Attorney Regulation).
In addition, an attorney may receive a gift or loan from the adult’s property, but only if the EPOA expressly permits it (s. 20(2)).
Compensation of Attorney (s. 24 of the POAA)
Section 24(1) of the POAA provides that an attorney must not be compensated unless the EPOA “expressly authorizes the compensation and sets the amount or rate”. However, an attorney may be reimbursed for reasonable expenses properly incurred in acting as the adult’s attorney without the requirement that such reimbursement be expressly authorized (s. 24(2)).
The amendments to the POAA have not changed an adult’s ability to make an EPOA, but they have clarified some of the rules regarding the making of and the use of EPOAs. While an EPOA that was validly made under section 8 of the POAA (repealed September 1, 2011) is deemed to be an EPOA made under Part 2 of the new POAA (s. 42(1)), it is still a wise idea for those who have already designated Powers of Attorney to revisit these matters and speak to a lawyer to be certain as to the applicability and enforceability of their current decisions with respect to Powers of Attorney and in light of these changes to the legislation.
For Further Consideration
Further to the issues discussed herein, stay tuned for further discussion on these related matters in relation to drafting and appointing Powers of Attorney:
1. Appointing one Attorney versus appointing more than one Attorney;
2. Authorizing the authority of the Attorney immediately or delaying it until a later date (ie. “Continuing” versus “Springing” Powers); and
3. What is reasonable compensation of an Attorney?
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LK Law – Langley Office