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One definition of “attorney” is an agent appointed to act in the place of another person.

The power of attorney is the instrument that sets out the appointment and authority of the attorney. The person who appoints the attorney is referred to as the grantor and signs the power of attorney. The grantee signs signifying acceptance of the appointment.

The attorney’s authority may be revoked or terminated by operation of law. If an attorney is acting within his usual authority and has no knowledge that his authority has been terminated then he is generally deemed to have the authority to act.

Where the authority of the attorney has been terminated situations may arise where, notwithstanding termination, the agent may be viewed at law to have authority.

Under BC statutory law there exists a short form of general power of attorney, which if executed, empowers the attorney to do anything the grantor can lawfully do, subject only to the restrictions set out in the power of attorney.

An enduring power of attorney continues to have effect even though the grantor becomes incapable of managing the adult’s affairs.

Unless the contrary is demonstrated, an adult is presumed to be capable of managing the adult’s financial affairs.

An adult, to make a valid enduring power of attorney, must understand:

  1. the adult’s property owned and approximate value;
  2. the adult’s obligations to dependents;
  3. the attorney can do anything the adult can do;
  4. improper management may lead to decline in value;
  5. the attorney may misuse the property; and
  6. the adult may revoke the power of attorney if capable.

An enduring power of attorney must state the attorney has a continuing authority if the grantor becomes incapable.

The attorney must sign the enduring power of attorney in the presence of 2 witnesses. Only one witness is required if the witness is a lawyer or notary in good standing.

If the enduring power of attorney is to be used for Land Title purposes it must be witnessed and executed in accordance with the Land Title Act. There are special witness requirements; if there is to be a transfer the original of the power of attorney must be deposited or a certified true copy with the Land Title office; and powers of attorney are only good for 3 years under the Land Title Act unless expressly excluded from the operation of s. 56 of the Land Title Act.

The power of attorney must not be witnessed by the attorney or a spouse, child or parent of the named attorney, nor an employee or agent of the person named as attorney.

Persons who provide health care or are an employee of a facility where the grantor resides must not be named as an attorney. The attorney must be an adult. More than one attorney may be appointed to act jointly or with different areas of authority.

If more than one attorney has the same area of authority they must act unanimously, unless the power of attorney sets out circumstances in which they need not act unanimously or sets out a way of resolving any conflict.

Duties of attorneys include:

  1. acting honestly and in good faith;
  2. exercising the care, diligence and skill of a reasonably prudent person;
  3. acting only within authority granted; and
  4. keeping prescribed records and producing such records for inspection at the request of the grantor.

The attorney must act in the grantor’s best interests taking into account the grantor’s current wishes, known beliefs and values and any directions to the attorney set out in the enduring power of attorney.

Priority must be given to meeting the grantor’s personal and health care needs.

Investments must be consistent with the permitted investments under the Trustee Act.

The independence of the grantor must be fostered.

Property that is the subject of a gift in a Will must not be disposed of unless disposition is necessary to comply with the attorney’s duties. The grantor’s personal effects must be kept at the grantor’s disposal.

An attorney must keep the attorney’s property separate from the grantor’s property but, this does not apply to property held in joint tenancy, unless the enduring power of attorney says otherwise.

An attorney has broad powers including:

  1. making a gift if the enduring power of attorney permits gifting and the grantor will have sufficient property remaining to meet personal care needs, health care needs and legal obligations, and further, such gifts were made by the grantor when capable and the total value of gifting is less than the prescribed value;
  2. an attorney may receive a gift or loan if the enduring power of attorney permits same; and
  3. the attorney may change a beneficiary designation other than in a Will.

An attorney must not make a Will for an adult.

If the attorney complies with the attorney’s duties the attorney will not be liable.

The attorney must not delegate unless the enduring power of attorney permits delegation. The attorney must not be compensated unless the enduring power of attorney permits compensation.

The enduring power of attorney takes effect on signing or a date stated or the date of a stated event.

A capable adult may revoke or change the power of attorney but, not an adult who has become incapable.

The authority of the attorney ends if:

  1. the enduring power of attorney is terminated;
  2. the powers are revoked;
  3. the attorney resigns; or
  4. the attorney is in a marriage like relationship or is the spouse and the relationship ends; the attorney becomes incapable; bankrupt; is a corporation and dissolves; or the attorney is convicted of a prescribed offence.

Any person may make a report to the Public Guardian and Trustee (“PGT”) of fraud, abuse, failure to comply with duties or neglect by an attorney regarding an incapable person. The PGT may then do one of many things including: investigate; seek a court order; advise the person they may apply for a court order; make a report; take steps to appoint a committee; or do nothing. The Court has powers to make orders and directions. The Court has inherent jurisdiction to act in a parens patriae capacity.