Want to make sure someone can help you deal with your finances and legal affairs if you get sick? You might want a Power of Attorney.
What is a Power of Attorney?
A Power of Attorney is a document that appoints someone to deal with your legal and financial affairs. BC’s Power of Attorney Act sets out the law for these important documents.
It’s not a given that your family members will be able to sign for you if you get sick. This is true even if you own assets together, or are married.
We simply can’t tell which of your family members are the right family members to listen to. As a result, you need to appoint the person you want to help you, so there is no confusion.
For example, you might think it would be obvious that your spouse should be able to sign for you, but think about these challenges:
- you have always looked after your family finances, and your spouse doesn’t understand what you have, or how to look after your finances
- you just married someone you met 2 months ago through an online dating app, and the children you had from your first marriage are very concerned about this new spouse
- your spouse is also experiencing challenges with their own mental health issues
- you and your spouse have separated, but never divorced
- you have agreed to keep your assets separate from those of your spouse
In each of these cases, your spouse might not be the right person to appoint to help you with your legal and financial affairs.
Are there different kinds?
Yes. The three most commonly used kinds are:
- standard Powers of Attorney
- enduring Powers of Attorney
- springing Powers of Attorney
Standard Powers of Attorney
A standard Power of Attorney, often just called a “Power of Attorney” with no other descriptor in the title, is a document that you use to appoint someone to deal with your legal and financial affairs only while you are capable.
The person you appointed (your “Attorney“) must follow your very specific instructions. If you cannot instruct them anymore, then they must stop working on your behalf. This means if you become incapable, your standard Power of Attorney will likely become invalid.
If you have made a standard Power of Attorney, and you have a stroke or other illness that renders you mentally incapable, then your Attorney must stop acting under that document immediately. If you want your Attorney to be able to keep helping you even if you get sick, then you should make an Enduring Power of Attorney.
These standard documents are not very common. They are used rarely, and only in certain specific situations.
For example, a standard Power of Attorney might be useful if you have to go to Australia for six months for work, and you want to your adult son to sell your home while you are there. You could make a standard Power of Attorney that allows your son to sign the legal papers while you are away.
Enduring Powers of Attorney
The most commonly used Power of Attorney in BC is an enduring Power of Attorney. This document appoints someone to look after your legal and financial affairs after you become incapable.
Enduring Powers of Attorney are meant to be used later. For example, this kind of document would be very useful if you get Alzheimer’s or Parkinson’s, because your Attorney could continue to help you despite any mental infirmity.
Your Attorney will use this document to act as your agent when you are capable. They will continue to act for you, in your best interests, if you can no longer do so yourself.
This document might be used if you are:
- going to be away
- physically incapable, but having difficulties with mental capacity
- mentally incapable
Springing Powers of Attorney
A springing Power of Attorney is only effective, or usable, when a trigger event has happened.
This kind of document is usually meant to be used only if you are mentally incapable. For example, when two doctors have declared you unable to manage your own affairs.
These triggers can be difficult to manage. What happens when your attorney can’t get two doctors to declare you unable to manage your affairs? You might be in that gray area between “not okay” and “okay”.
Sometimes people worry that their Attorney will interfere in their affairs before they are needed. If you think that might happen, then you should really re-think who you what to appoint as your Attorney.
These are are incredibly important documents, and they give your person a lot of power. Don’t pick someone to be your Attorney if you can’t trust them to do the work for you as you want it done.
What does an Attorney do?
An Attorney is your agent – they are there to help you, and to carry out your wishes.
Your attorney must follow your instructions while you are capable. If your Attorney is helping you after you become incapable, then they are to act in your best interests, fostering your independence, and otherwise managing your money for you as best they can.
There are strict reporting requirements for Attorneys, and you should not appoint anyone who might have difficulty carrying out these reporting requirements.
A Power of Attorney cannot be used for health care or for personal care. You need a Representation Agreement to appoint someone to help you with your health care or personal care.May 7, 2017 2:18 pm