An Enduring Power of Attorney is a legal document in which you can appoint one or more persons to manage your financial affairs and make decisions on your behalf while you are capable and in the event you become incapable due to mental incapacity or any other reason. You must be of sound mind to make a Power of Attorney so it’s a good idea to have one in place early on.
A Power of Attorney comes into effect as soon as it is signed by both you and your attorney. Each of you must sign in the presence of two witnesses except if the witness is a B.C. lawyer or notary public in which case only one witness is required.
Section 19 of the Power of Attorney Act outlines the duties of an attorney as follows:
19 (1) An attorney must
(a) act honestly and in good faith,
(b) exercise the care, diligence and skill of a reasonably prudent person,
(c) act within the authority given in the enduring power of attorney and under any enactment, and
(d) keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult.
(2) When managing and making decisions about the adult’s financial affairs, an attorney must act in the adult’s best interests, taking into account the adult’s current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney.
(3) An attorney must do all of the following:
(a) to the extent reasonable, give priority when managing the adult’s financial affairs to meeting the personal care and health care needs of the adult;
(b) unless the enduring power of attorney states otherwise, invest the adult’s property only in accordance with the Trustee Act;
(c) to the extent reasonable, foster the independence of the adult and encourage the adult’s involvement in any decision-making that affects the adult;
(d) not dispose of property that the attorney knows is subject to a specific testamentary gift in the adult’s will, except if the disposition is necessary to comply with the attorney’s duties;
(e) to the extent reasonable, keep the adult’s personal effects at the disposal of the adult.
(4) An attorney must keep the adult’s property separate from his or her own property.
(5) Unless the enduring power of attorney states otherwise, subsection (4) does not apply to property that
(a) is jointly owned by the adult and the attorney as joint tenants or otherwise, or
(b) has been substituted for, or derived from, property described in paragraph (a).1
It’s your decision who you appoint as your attorney (commonly a spouse, parent or child, or someone else you trust to manage your affairs on your behalf). A lawyer can assist you in preparing a Power of Attorney and meeting the signing requirements.
1POWER OF ATTORNEY ACT [RSBC 1996] CHAPTER 370
www.bclaws.ca/civix/document/id/complete/statreg/96370_0
Setting up a power of attorney is an essential step in protecting your future and ensuring your wishes are respected. At Deborah Todd Law, we help individuals and families across Victoria, BC, establish clear and legally sound power of attorney documents. Whether you are planning alongside divorce proceedings or seeking broader legal advice through our family law services, we’re here to guide you with care and professionalism.
Learn more about how we can assist by visiting our full areas of practice or explore our homepage for an overview of all the ways we can help. Planning for financial matters, including estate taxes, often goes hand-in-hand with setting up an enduring power of attorney, and we’ll ensure that your documents meet your goals and the legal requirements.
Deborah Todd’s extensive background in family law and estate planning is a significant asset to clients, and you can learn more about her expertise through her LinkedIn profile.
When you’re ready to move forward with setting up a power of attorney in Victoria, contact Deborah Todd Law to schedule a consultation. We’ll work with you to put the right protections in place for you and your loved ones.
