What it is best to know earlier than utilizing an influence of lawyer (and you might must replace yours …)

Types of Power of Attorney

There are three main types of powers of attorney that can be issued: a limited power of attorney, a non-permanent power of attorney, and a permanent power of attorney. In BC:

  1. A power of attorney is “permanent” if it contains wording that indicates that it will continue to function in the event of the inability of the person granting the power of attorney. In the absence of an express wording, the power of attorney is not permanent and expires
  2. A power of attorney is “limited” when the document contains provisions that indicate that it is limited to a specific purpose or period of time.

Scope of your authority

In British Columbia, the powers of an attorney are determined by the Power of Attorney Act (the “Act”) and the terms of the Power of Attorney itself. In this information sheet, the person who issued the power of attorney is referred to as the “grantor”. This information sheet applies to permanent powers of attorney and is referred to as “powers of attorney” for the sake of simplicity.

1. Financial matters

With respect to the grantor’s financial affairs, subject to limitations imposed by law and the language of the authority, the appointed attorney is empowered to make decisions on behalf of the grantor or to do anything that the grantor may do from a proxy.

Under the law, financial matters have a specific legal meaning that is broader than the usual usage of the term. “Financial affairs” include the “business and property of the grantor and the management of the legal affairs of the grantor”.

Some of the most common examples of matters that normally fall within the scope are paying the grantor’s bills, selling the grantor’s property, and filing the grantor’s tax returns.

2. Gifts and credits

The rationale in BC is that a fellow’s attorneys may not make gifts, loans, or donations out of the fellow’s property unless:

  • The fellow has sufficient remaining assets to meet the personal care and health needs of the fellow, as well as those of the fellow’s potential dependents, and to meet the fellow’s other legal obligations
  • If the grantee was able, the grantee gave gifts, loans, or charitable gifts of that nature
  • The total value of all gifts, loans, and charitable donations in a year is less than 10% of the granter’s taxable income for the previous year or $ 5,000, or the power of attorney gives the authority to give gifts without this limitation

It is crucial that the fellow’s attorney is not allowed to give any gifts or credits to himself unless the document expressly allows it. If the power of attorney does not specifically allow it, it means that the attorney cannot transfer assets in the attorney’s name, nor can the attorney collate assets between the attorney and the applicant.

3. Hire skilled workers

An attorney generally has the authority to use the services of qualified professionals to assist the attorney in performing his or her duties. An example would be that an accountant can generally be hired to prepare tax returns when it is reasonably necessary.

4. Health care

It is important to note that the power of attorney does not extend to decisions related to the health care or personal care of the grantor, e.g. B. whether medical treatments or drugs should be administered. This authority must be assigned separately by means of a representation agreement.

However, the attorney will be able to facilitate payments that may be related to health and personal care. It is therefore extremely important that the named attorney work with the person named as the healthcare decision maker under the representation agreement.

5. Will

A power of attorney does not give the founder the authority to amend or destroy a will or to make a will. These are powers that cannot be delegated by the applicant and any wills made by the attorney on behalf of the applicant will be invalid.

Your Duties as a Lawyer

A lawyer acting under a power of attorney has certain duties, all of which result from the fundamental obligation to act in the best interests of the approver. These tasks include:

1. Act honestly

A lawyer must act honestly and in good faith.

2. Act as a reasonably prudent person

An attorney must exercise the care, diligence, and expertise of a reasonably prudent person.

3. Act within your authority

An attorney must act within the powers set out in the power of attorney and in accordance with the law.

4. Keep records

An attorney must use reasonable efforts to determine the grantor’s assets and liabilities from the date the attorney first exercises authority on the grantor’s behalf and, upon request of the granter, keep and present the following records:

(a) a list of those assets and liabilities

(b) an up-to-date list of the grantor’s assets and liabilities, including an estimate of their value when appropriate;

(c) accounts and other records of the attorney’s exercise of authority under the authority and

(d) all invoices, bank statements and other records necessary to establish complete accounts for the receipt or payment of income or capital on behalf of the grantor.

5. Act in the best interests of the fellow

In administering and deciding on the grantor’s financial affairs, an attorney must act in the best interests of the grantor, taking into account the granter’s current desires, known beliefs and values, and any instructions to the attorney set out in the power of attorney.

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