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What is a Power of Attorney?
A Power of Attorney is a document that appoints someone to deal with your legal and financial affairs.
Are there different kinds of Powers of Attorney?
Yes. The three most commonly used types of Powers of Attorney in BC 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.
A standard Power of Attorney usually becomes invalid when the adult who made it becomes incapable. This is because the person you have appointed (your “Attorney“) is meant to follow your very specific instructions. If you cannot instruct them anymore, then they must stop working on your behalf.
So 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 Power of Attorney immediately. If you want your Attorney to be able to keep helping you even if you get sick, then you want to make an Enduring Power of Attorney.
Because standard Powers of Attorney cease to be usable when the adult who made them becomes incapable, they are not made very often. They are usually only used now in very specific situations.
For example, if you have to go to Australia for six months for work and you want to sell your home while you are there, you might make a standard Power of Attorney that would end when your house is sold, or when you come back from Australia.
Enduring Powers of Attorney
The most commonly used Power of Attorney in BC is an enduring Power of Attorney. An enduring Power of Attorney is a document that appoints someone to look after your legal and financial affairs after you have become incapable of doing so yourself.
For example, if you have been diagnosed with Alzheimer’s disease, or Parkinson’s disease, there may come a point at which you will be either physically or mentally unable to manage your own financial affairs.
Your Attorney will use your enduring Power of Attorney to act as your agent when you are capable, and they will continue to act for you, in your best interests, if you can no longer do so yourself.
The great thing about an enduring Power of Attorney is that your attorney can help you when you are capable, or if you become incapable. So an enduring Power of Attorney could be used if:
- you are capable, and want help with your finances because you are going to be away, or otherwise unable to deal with your affairs in person
- you are physically incapable, but having difficulties with mental capacity
- you are mentally incapable
Springing Powers of Attorney
For example, you might have a springing Power of Attorney that only becomes usable when two doctors have declared you unable to manage your own affairs. Or, you might have a springing Power of Attorney that becomes usable when you have left on your two year trip to France.
These triggers can be difficult to manage. What is your Attorney supposed to do if they can’t get two doctors to declare you unable to manage your affairs, but you are clearly in need of help dealing with your activities of daily living?
Springing Powers of Attorney are often made by clients for specific timeframes, or if you are concerned that your Attorney might use the Power of Attorney too early. However, if you are concerned that your Attorney might use the Power of Attorney too early, then you should really re-think who you what to appoint as your Attorney.
Powers of Attorney are incredibly important documents, and they give your Attorney 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.
If your Attorney is allowed to help you while you are capable, then they must follow your instructions. 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 in a hospital, 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.