A power of attorney is a legal document that authorizes someone else to manage your finances and property on your behalf. The purpose of this document is to protect and safeguard your property and other vital decisions if the unlikely event you are unable to do so in the future. In Canada, the person you bestow this authority is referred to as an “attorney”, but they need not be a lawyer.
Appointing an attorney can be an important decision, to plan for a time when you may need help managing your affairs. The person you nominate will represent you to others when you cannot, around all acts you’ve authorized them to perform. Common roles and responsibilities bestowed to an attorney in Canada include selling property, collecting debts, and managing investments.
Types of powers of attorney (PoA) used in Canada
1. General power of attorney
A general power of attorney is a legal document authorizing your attorney over all or part of your finances and property. The attorney has absolute authority to manage your finances and property on your behalf for a limited time—only when you still can manage your affairs.
This authority ends if you die or become mentally incapable of managing your affairs. A general power of attorney is commonly used in businesses or for short-term temporary reasons. It can be limited to a few tasks, such as selling a real estate property or overseeing asset investment.
2. An enduring / continuing power of attorney
This legal document authorizes your attorney to continue acting on your behalf if you become mentally unable to manage your finances and property. The attorney you nominate maintains their power to act if and when you become unable to communicate or otherwise mentally incapable.
As specified in the document, the attorney can exercise authority over all or part of your finances and property. Certain circumstances can also allow having the enduring power of attorney to come into effect only when you become mentally incapable. This means they can’t exercise authority over your finances or property when you’re still mentally capable of managing your affairs.
On Sept. 1, 2011, changes to the Power of Attorney Act in British Columbia came into effect. The new act came with a substantial improvement on the enduring power of attorney laws. All power of attorney documents signed in British Columbia must heed this new act.
The new legislation allows you to create a power of attorney with specific duties and powers, limits on authority, accounting obligations, and specific rules for powers of attorney dealing with real estate.
Who Can You Choose as Your Attorney?
You can appoint any person to be your attorney as long as they have good judgement. People often select someone they know can act in their best interest. This can be a spouse, relative, or close friend.
Eligibility requirements for power of attorney often vary by province, so it’s always a good idea to seek legal interpretation to confirm the rules of your jurisdiction. Here are a few tips to help choose the best attorney:
1. Choose someone who can handle the responsibility
A power of attorney document will authorize someone to make difficult decisions when you can no longer act consciously. They may even be tasked with agreeing or refusing crucial life-saving interventions on your behalf.
Your attorney for property and personal finances will also need to make crucial decisions surrounding your finances and legal obligations. This means you should settle on someone able and comfortable to make critical decisions during potentially stressful times.
2. Choose someone willing to take on the responsibility
When appointing an attorney, one of the critical tasks is to establish whether they are willing to take on the responsibility. They may be able to handle the responsibility, but do they understand the duties and responsibilities involved in being your Attorney?
Ensure they know your wishes and are willing to fill in during the most challenging times. Remember that you’ll be around to experience the consequences of any failure on the part of your attorney
3. Choose someone eligible as your attorney
Canadian provinces require Someone to be over the age of majority to serve as an attorney. Ontario and Alberta require adults of 18 years and above, while British Columbia requires one to be 19 years or above.
The age requirement only serves in your best interest to ensure you are represented by a responsible adult. While there’s no law requiring your attorney to be a resident of Canada, it’s best to appoint someone you can contact to act quickly in an emergency.
A power of attorney takes effect immediately after signing or on a specific date that you include in the document. Among other requirements, you need to be mentally upright for the signing of any power of attorney to be deemed valid.
By being mentally capable, you’re expected to understand and appreciate what a power of attorney does and the consequences of making such a decision. Each province in Canada has laws on the powers of attorney that deal with finances, property and personal care.
You may want the advice of a lawyer before signing a power of attorney to ensure that everything is valid. Legal help will also provide you with a clear picture of what your attorney will be able to do, how to monitor your attorney’s actions, and what to do if you want to cancel a power of attorney.
Signing Must Occur in the Presence of Witnesses
The signing of a power of attorney follows the same provisions as your last will. First, the witnesses must be present when you sign, and they must also sign the documents. Persons gaining directly or indirectly from the document’s contents cannot witness the document’s signing. They include; the attorney, their spouse, common-law partner, your spouse and anyone under the age of majority in their province.
You can pick two witnesses who fulfill the above conditions, except for Manitoba residents. Section 11 of the Powers of Attorney Act provides a list of people eligible to witness the power of attorney signing in Manitoba. These include:
A person registered to solemnize marriages in Manitoba; a judge or magistrate in Manitoba; a qualified medical practitioner in Manitoba; a lawyer qualified to practice in Manitoba; a notary public for Manitoba, or a police officer in a municipal police force in Manitoba.
Advantages of having a power of attorney
1. It can give you peace of mind
Appointing an attorney to act on your behalf provides peace of mind knowing that there’ll be someone to make important decisions about your property, finances or healthcare during uncertain times.
2. Prevents unnecessary delays during critical situations
The power of attorney document ensures that your appointed attorney can act on your behalf immediately. This would remove any delays in decision making if you were to become incapacitated or mentally incompetent.
Lack of a power of attorney for your property or health in Canada means a close family member would usually need to apply to become your court-appointed guardian. This process may involve unnecessary delays when a decision needs to be made quickly, and the request could represent a life-altering imposition on a loved one.
3. It can protect your loved ones
Choosing an attorney now will alleviate stress on your loved ones, who may not be prepared to make critical decisions during a difficult time. It also protects them from lengthy court proceedings or disagreements due to conflicting views on important decisions.
What About Decisions Regarding Healthcare and Personal Care?
Parts of Canadian territory allow you to draft documents that give another person the authority to make healthcare and other non-financial decisions on your behalf. The authority to make these decisions is valid only if you were to become mentally incapable of doing so for yourself. In BC, such a document is called a representation agreement.
Can I still make decisions if I grant someone a PoA?
You are free to make decisions about your finances and property as long as you are mentally capable. Similarly, the law allows you to cancel or change your power of attorney as long as you have the capacity to make legal decisions. The law also permits your appointed attorney to decline to act on your behalf.
Provisions for a power of attorney vary from province to province in Canada. As a result, the law may require you to update your documents if you decide to relocate.
Overall, PoAs come with immense influence over your decisions later in life. The only limits to this power are that your attorney can’t appoint a new power of attorney, change your will, or add a new beneficiary to your insurance policy.
A power of attorney is a crucial document that allows you control over critical decisions in your life, even if you become incapacitated. The document ensures protection for your property, safeguards your overall well-being and helps avoid problems for your loved ones. Consider talking to a lawyer first to understand all the risks and benefits and the proper form of the document.
What every older Canadian should know about: Powers of attorney (for financial matters and property) and joint bank accounts
Power of Attorney Act – RSBC – 1996 Chapter 370
Manitoba The Powers of Attorney Act C.C.S.M c. P97
What every older Canadian should know about Powers of Attorney