September is here and with it comes the new Part 2 of the British Columbia Power of Attorney Act. Most of the changes relate to the powers that your attorney (the person you appoint to act as your agent) will have. There are also some very important changes about who can be your attorney, and some changes to the form itself.
You already have a Power of Attorney? Excellent. Enduring PAs made before today (September 1, 2011) remain valid, even though they are not going to be in the new format. PAs made under Part 1 of the Act are not affected at all.
Section 8 of the Act, which said that a PA expired when the maker of it becomes mentally incompetent, unless the PA expressly said otherwise, has been repealed and replaced by Part 2, Enduring Powers of Attorney. An Enduring PA, therefore, is one that remains valid even after the maker becomes incompetent.
The main difference in form between the old Enduring PA and a new one, is that now, the people you appoint as your attorneys must also sign the PA in front of witnesses. They will still also have to sign the affidavit stating they were legally adults, if the PA was to be used in the Land Title Office. The PA cannot be used until the attorney has signed it in the presence of two witnesses. Only one witness is needed if the witness is a lawyer or notary public. If you have two attorneys being appointed and only one has signed, the one who has signed can use the PA even though the other attorney has not yet signed (unless you specify the two of them have to act together, and then neither can do anything until both have signed.)
Another important changes is that paid caregivers are no longer allowed to become an attorney for a person they are caring for. That should prevent a lot of the problems that have arisen in the past, where people hired to look after an elderly person have taken advantage of the close relationship that often develops, to get access to the elderly person’s money and assets. The exception to this rule is that if the paid caregiver also happens to be a family member, then that person may be appointed as attorney.
There are also some rules concerning who may act as the witness to the signing of a PA, again designed to prevent abuse by someone trying to take advantage.
I usually recommend to my clients that they consider appointing their spouse (if they have one) as their PA, and failing that, an adult child or other trusted individual. It is very important that such a PA be an enduring one, because otherwise one of the main reasons for making the PA is lost. Often, the time the attorney will need the PA is when the maker has become incapable of making their own decisions, either by reason of injury or disease.
The coming into force of the new Part 2 provisions of the Power of Attorney Act provides a good opportunity to remind everyone to think about what would happen to their finances family, if they were to become incapable and no one had the ability to take over the management of their financial affairs. It could be ugly. It is so easily taken care of that, so why not do it?