People often say “I am the ‘power of attorney.” This is wrong and confusing. There is a difference between the name of the document and the name of the roles in the document.

A Will is the name of a document. You would not say “I am the Will.” You might say “I am the will-maker” or “I am the executor’ or ‘I am a beneficiary’ Will-maker, executor, and beneficiary are roles in a Will.

It is important to know and use the correct terms.

Are you making or named in a non-enduring Power of Attorney? Or an Enduring Power of Attorney? Or a Representation Agreement under section 7 with authority for routine finances?

An EPA has two roles: 1) Attorney; 2) Alternate attorney.

The term ‘attorney’ does not mean lawyer.

• Appoint someone you trust.
• You can appoint more than one attorney or alternate.
• People usually appoint a spouse, family member, relative, or friend.
• Those you appoint do not have to live in BC, but there can be some practical challenges.
• If you appoint someone who lives in the USA, they need to file a form called FBAR with Internal Revenue Services (USA) when they start acting on your behalf.
• You may appoint someone who is 18 years old; they cannot act until they are 19 years of age.
• It is common for spouses to appoint each other, but they will want to appoint someone else as a back-up. For example, John and Mary appoint each other and they each appoint their daughter Anna as an alternate.
• Sometimes people appoint a Trust Company, Credit Union, or professionals like an accountant. Special wording is required in the EPA as these appointees will charge a fee-for-service.

As of September 1, 2011, the law in BC has some restrictions on who you can appoint as attorney/alternate in an EPA.

You can NOT appoint:

1. A person who is compensated to provide health or personal care services to you (for example, a paid caregiver); or
2. A person who is an employee of a facility where you live and that facility provides health or personal care services to you. (Where you live falls under personal care.)

These restrictions do not apply if the person is your spouse or is your parent or your child (by birth or adoption).

In the past, legal professionals used the term ‘donor’ to refer to the person who makes/owns the EPA.

Today, the modern term is ‘adult’ or ‘maker.’

Nidus recommends you first get informed. You will find lots of information on the Nidus website.

Nidus recommends you go to a lawyer or notary public who is experienced with the EPA, including the amendments to the law as of September 1, 2011.

• To find  a lawyer, call the Lawyer Referral Service at 604.687.3221 or 1.800.663.1919.
• To locate a notary public near you, contact the Society of Notaries Public of BC at 604.681.4516 or 1.800.663.0343 or search at https://snpbc.ca/ > Roll of Notaries

The legal professional can draft the EPA for you. They generally do not witness forms drafted by someone else.

Duties of an attorney(s) also apply to the alternate(s). As of September 1, 2011, the authorities of an attorney or alternate do not come into effect until they have signed the EPA and their signature has been witnessed. See FAQ about witnessing requirements.

An attorney must act honestly and in good faith. They must act according to any restrictions or wording given in the EPA. They must also act according to the legal duties outlined in section 19 of the BC Power of Attorney Act. These duties are provided by Nidus at Role of An Attorney

The law also sets out privacy requirements and right to access information for an attorney. Nidus has information on Privacy and Access to Information for EPA

In discussion about duties, you may hear the term ‘fiduciary.’ This means, when acting for you, an attorney is in a position of trust and must act responsibly for your benefit, not theirs. You may also hear this described as an agency relationship. An attorney is your agent.

Your attorney is not personally liable (responsible) for debts you owe before the EPA was made or before your attorney started acting. (Your attorney may try to arrange a re-payment plan for your debts.)

In section 22 of the BC Power of Attorney Act it says Your attorney is not liable for any loss or damage to your financial affairs when acting as your attorney as long as the attorney follows their duties and any directions given by the court (when asked).

Yes, your attorney automatically has authority to delegate any or all decision-making authority/power for investments matters. An attorney can only delegate this authority to a qualified investment specialist.. (An attorney does not have to delegate their authority for investment matters; but the law says they ‘may.’) You have the option to state in your EPA that delegation for investment matters is not allowed.

No, your attorney must not delegate decision-making authority for non-investment matters UNLESS you include a statement in your EPA to allow this.

Delegation of authority is outlined in section 23 of the BC Power of Attorney Act).

Yes, an attorney named in an EPA may retain the services of a qualified person to assist the attorney to carry out their duties and authorities. For example, the attorney might pay someone to do your taxes.

The legislation differentiates between an attorney’s authority/power to decide and an attorney’s need for help with tasks.

Unless you state it in your EPA, an attorney must not receive any personal benefit for acting as your attorney; this includes taking a fee or borrowing your money or giving themselves ‘birthday money’ even if it was your practice to do this.

If you have a spouse and/or minor children, you will want to consider including a specific statement to allow the use of your money for the benefit of others.

An attorney has the right to be reimbursed for reasonable out-of-pocket expenses they may spend when carrying out their duties. They must keep records and receipts of any claims.

Learn more about the specific authorities in an EPA.

Enduring Powers of Attorney are called ‘enduring’ because they are effective even when you are mentally incapable.

You can also say that your EPA will be in effect while you are capable. This does not prevent you from continuing to manage your own affairs for as long as you are capable.

It might be tempting to ask a legal professional to use wording that says the EPA only comes into effect when you become mentally incapable. Some refer to this as a ‘springing clause’ or ‘trigger event.’ Although this idea may seem logical, it is NOT helpful, given the number of unknowns that can arise—including if others need to assist you with certain things but cannot do so unless or until you are found incapable of managing ALL of your financial and legal affairs.

Why would you want an EPA to be in effect while you are capable? Mental incapability is not ‘all or nothing.’ It can be gradual or fluctuating (off and on), such as with dementia. Also, you may be capable and want help because:

• An illness or injury is affecting your energy or concentration.
• You are out-of-town on vacation or in hospital and cannot physically manage your finances.

To be effective, an EPA must also meet specific signing and witnessing requirements. Some EPAs made on or after September 1, 2011 have been rejected by the Land Title Office because they do not meet the new witnessing requirements..

As of September 1, 2011, you, the adult, must sign the EPA and your signature must be witnessed by two witnesses. Only one witness is required if the witness is a BC lawyer or a BC notary who is a member of the Society of Notaries Public.

Now, each attorney you appoint must also sign the EPA before they have authority to act and their signature must be witnessed. You and your attorney do not have to sign at the same time.

If your EPA might be used for real estate matters, it must meet requirements of the Land Title Act and Land Title Registry. The lawyer or notary who drafts your EPA can look after these:

• Your name (the adult) on the EPA should match your name as it appears on the ‘title’ of any real estate/land you own.
• Your EPA, when it is made, needs to include a statement called ‘Officer Certification.’
• Your attorney(s) will need to sign a form to say they are 19 years or older and are named in your EPA. The form is like an affidavit and must be witnessed as such.
• Your EPA can be registered with Land Titles at any time. Because it is an EPA, the Land Titles registration does not expire [section 56(3), Land Title Act]..  There is no need for the legal professional to put a statement in the EPA  to exclude expiration as is often done for a non-enduring Power of Attorney.
• There is no requirement that the EPA must be signed with a black pen. In the old days when photocopiers were new at Land Titles, blue ink did not copy as dark as black. This has become a persistent myth.

An Enduring Power of Attorney ends when you die. It also ends if you revoke (cancel) it, or if someone is appointed to be your legal guardian (committee of estate) through the Supreme Court of BC, or if the Public Guardian and Trustee (PGT) takes over your affairs.

There are a number of other ways an EPA or the authority of an attorney is ended or suspended. Nidus has information in lifespan of an EPA.

Yes, if you are capable of making an EPA, you are considered capable of revoking (cancelling) it. Someone else can NOT revoke an EPA on your behalf.

Making a new EPA does NOT automatically cancel your previous one.

The BC Power of Attorney Act outlines specific requirements for revoking an EPA. Legal professionals often put a ‘revocation statement’ in a new EPA but this may not be good enough.

Nidus has information on the legal requirements for Revoking an EPA

If an attorney and/or alternate has signed the EPA with witness(es),they are authorized and may have a duty to act. They can resign. The BC Power of Attorney Act outlines requirements for resigning.

Nidus has information on Resigning as an Attorney or Alternate in an EPA

Banks and Credit Unions may provide forms for PoA or EPA. These forms only cover accounts specific to that institution. The Bank/Credit Union forms do not give someone authority to deal with your taxes or benefits or auto accident claims. This approach is an old practice and not useful for future planning—it can also conflict or cancel other legal documents you make. You do not have to use the Bank/Credit Union forms and, if you did, consider revoking (cancelling) it.

Sometimes people move to be and bring their legal planning documents they made in another province or country.

A legal planning document for financial affairs made outside BC and that is intended to be in effect while you are incapable, may be accepted as an EPA made under BC law. However, to be accepted, the document made outside BC must be accompanied by a Certificate of Extrajurisdictional Solicitor, signed by a lawyer in the province of qualified country where the document was made.

Nidus has more information for Documents made Outside BC

Nidus has zero-tolerance for abuse. However, in our experience, lack of education and mixed messaging can be factors.

• An attorney appointed in your EPA needs information about their role and duties. This means you need to be able to explain the EPA and its wording—ask questions of the legal professional  the EPA to make sure you know what it says. You can also let your attorney/alternate know about the information at Nidus.
• Many parents tell their children “you are going to inherit it all anyway.” This may not be good messaging, especially when you can’t predict the future cost of your own care needs.
• Some professionals who give advice on financial planning suggest their clients induce an estimate of what they expect to inherit or be gifted by parents or others. This can give the wrong message.

If you are capable and have concerns, revoke your EPA. Make a new EPA and appoint different people. If you don’t make a new EPA when you are capable, you may find your financial affairs are looked after by someone you would not choose.

If you know someone who is incapable and you have evidence they are being abused through use of an EPA, contact the Public Guardian and Trustee at 604-660-4444. Complaints are kept private.