When it comes to planning anything to do with severe illness or incapacity, many feel uncomfortable thinking about or discussing the subject.

When it comes to our financial and legal affairs, there comes a point where we should consider our family members and how we would be best cared for in the event we are unable to make decisions. Monterio Law can assist in all matters related to this sort of planning.

Making important decisions about these matters can ensure you receive required medical, palliative, or personal care without becoming a financial burden to your loved ones. By appointing a power of attorney, you can enable family members to exercise authority in the event of incapacity. You determine who will make key financial and transaction decisions.

What Is Power of Attorney?

A power of attorney (POA) is a legal document that passes authority to a designated individual - or individuals - the authority to make decisions regarding the principal adult’s financial affairs. In British Columbia, this process is regulated by the  Power of Attorney Act.

The person designated is called your “attorney”, something that understandably confuses people. Monterio Law are experienced at setting up the ideal POA for your needs and can advise and guide you through the process.

In British Columbia, a power of attorney does not allow your designated attorney to make decisions regarding your medical treatment or associated care. These powers are generally covered by a Representation Agreement or advance directive.

In order for a POA to be legally valid, it must be signed by one witness if they are a B.C. lawyer or notary public, or two witnesses.

Who Can I Designate as My Attorney?

B.C.’s Power of Attorney Act allows you to choose from a wide range of individuals or groups to be your attorney:

You cannot appoint an attorney who is receiving payment for health care services. If you live in a care facility, you cannot appoint someone who is an employee of that facility (or the company that owns it). Your attorney must be 19; if you wish to appoint someone younger, you can, but they will be unable to act until they reach 19.

Do I Have to Pay the Attorney I Appoint?

This depends on who you appoint. If you appoint an individual such as a family member, they are entitled to receive expenses incurred in the pursuit of their duties. To do so, they must keep detailed records - with receipts - of any amounts they have spent. If you do want them to be paid, then you must include specific directions to that effect in your POA document.

If you have chosen a Trust company, the Public Guardian and Trustee, or a private institution to hold your POA, then they will charge fees if specified in your POA document. Monterio Law can help you decide who will best suit your needs as your attorney. If you wish to set up a Trust, we can assist. 

Are There Different Types of POA?

British Columbia has three types of POA that are commonly used. These are:

General Powers of Attorney

This type of POA usually does not set limits on the power held by the designated attorney(s). It restricts specific powers to only legal and financial matters. This POA will end if the adult becomes mentally incapable.

Specific POA

Also called a Limited POA. This type sets specific limits on powers held by the attorney. Power can be limited to a particular subject matter (such as pertaining to a piece of real estate). They may also have time limits. This POA may also have a clause added that allows powers set out to continue if the designator becomes incapable.

Enduring POA

This type of POA generally continues when a grantor becomes incapable. While this POA is active, provided the grantor is competent, he/she has the same powers as the attorney.

Power can be stipulated to only transfer to the attorney if the adult is demonstrably incapable of making decisions. Revoking an enduring power is not possible unless the grantor is capable of understanding what that entails.

What About Decisions Related to Medical Care?

The authority of an attorney in a POA does not cover decisions related to health or personal care. If you wish to make plans that cover these decisions, there are options available in British Columbia.

Advance Directive

The legal requirements behind an Advance Directive are set out in Health Care Consent and Care Facility Admission Act. This document must be created when the adult is still capable of understanding and making such decisions. It gives consent in advance to certain specified matters relating to health care or medical intervention.

The document must specify the type of health care it is giving permission for, such as heart surgery. It must also specify the situation or circumstances where it becomes active. It cannot cover matters of personal care. Instructions should be clear and concise so a provider can act on it without consultation or further consent. 

Representation Agreement

Offering a better option when it comes to directing medical care in the case of incapacity. This document covers personal care as well as medical treatment, which offers a better solution for many people.

With this agreement, you designate a named individual - or individuals - to make decisions on your behalf in the event the adult is incapable. This allows you to discuss your personal wishes - or write them down so they are known.

A Do Not Resuscitate order in the event of cardiac arrest would be an example. Understanding the nature of your wishes is central to this type of agreement. 

Final Thoughts