‘Til Death do us Part – Evaluating your Enduring Power of Attorney

September 15, 2011

Your Power of Attorney is the document that allows the person that you name the ability to make decisions on your behalf.  The type and limits of this authority are granted while you are of sound mind and can give authority to make business, medical or financial decisions. 

There have been some changes made to the Power of Attorney Act that took effect in Sept 2011.  Today we’re going to talk specifically about the Enduring Power of Attorney.  This gives the named individual authority to make decisions over legal and business affairs and will stay in effect even after you become incapacitated.

It is very important you recognize the power that is being given before naming an Enduring Power of Attorney, so you can choose an individual that will act with your best interests in mind.

First Step
The first step is going to see a good lawyer.  They will help you take an objective look at all of the assets that you have under your control, and any obligations that you may have to other people.  They’ll explain to you that your named attorney can do anything on your behalf that you would be able to do yourself, unless it’s specifically excluded in the agreement.  This can mean changing beneficiary designations outside of your will.  If the agreement gives permission, they can give money as gifts to others, to charities or even to themselves.  The only document that an Enduring Power of Attorney can’t change is your will.

Who Can be Name Enduring Power of Attorney?
In BC, anyone over the age of 19 can be named, excluding a professional health care worker or provider who is taking care of you.

Accountability of the Attorney 
Attorneys can be held responsible by any other beneficiaries or family members who feel that they are misusing their power.  This can be either as a result of an action that they took or, as an action that they failed to take.  Here’s an example.  An investment decision needed to be made and the delay of the decision led to a loss. The beneficiary can go to court and hold the Attorney personally responsible for the loss that was as a result of an action not being taken.  To mitigate some of this risk, the Power of Attorney is allowed to get help from a qualified investment advisor.

A Triggering Event
Since a lot of responsibility comes along with the Power of Attorney, it is helpful to name an event that will put the POA into effect. For example, a triggering event could be a deemed incapacity by two Doctors.  This keeps the Enduring Power of Attorney from acting on your behalf before you want them to.   Unless a triggering event is specified, the named individual has the ability to act on your behalf immediately after the documents are signed.

Rights of the Attorney
The person that you have named as your Attorney may have a change of heart after they realize all of the personal responsibility that they are taking on.  A named Attorney does have the right to resign from the position, but must take the steps to properly give notice.   Make sure that you’ve had a heart to heart with this person beforehand so they can make the decision fully informed.  This will keep you in control and give you the option to consider someone else if you first choice is not willing.

Finally, if you feel that it is your Attorney’s right to be compensated, you should state this in the agreement.  Unless it is written in, your Attorney may not be able to receive any monetary reward for the service they have provided and liability they have accepted on your behalf.

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