WHAT IS A POWER OF ATTORNEY

A Power of Attorney is a legal document that authorizes one person to act for another person. A grant of power of attorney allows the attorney to sign legal documents and to make contracts according to the powers granted within the power of attorney. Historically a power of attorney ceased upon mental infirmity. Under the present British Columbia legislation, the power of attorney can be enduring in the sense that it would continue to operate even if the person granting the power of attorney had become mentally incapable. Of course, the grantor of the power of attorney has to be mentally competent at the time the power of attorney was signed. A power of attorney ceases to be effective upon death. Your will would then come into force.

WHAT CAN A POWER OF ATTORNEY BE USED FOR?

Most legal authority can be granted to an attorney. The most usual use of a power of attorney is for signing real estate or bank documents when the grantor of the power of attorney is unavailable to sign or mentally infirm. For example, even though you may own property as a joint tenant with your spouse, if your spouse became mentally infirm or was out of the province you would need a power of attorney to sell your home.

REPRESENTATION AGREEMENTS

On February 28, 2000 the new Representation Agreement Act of British Columbia came into force. The intention of this act was to phase out the existing enduring powers of attorney and replace them with representation agreements. This is now unlikely to occur due to concerns about the complexities of the Representation Agreement Act. New Power of Attorney legislation will likely be enacted in the future which will replace financial representation agreements but will preserve health care representation agreements. Agreements prepared under any existing legislation will probably be grandfathered.

HEALTH CARE REPRESENTATIVES

Probably the most novel item in the new act is the ability to empower a health care representative to make health care decisions for the grantor. Maybe more important is the ability of the representative to refuse health care. In my opinion this is likely the most important facet of a health care representation agreement. Often living wills were signed along with powers of attorney and wills but the living wills had no statutory effect. Now these living wills do have a statutory effect and you should update old style living wills to the new Act's format. These documents often contain a declaration that the grantor has no desire to be kept artificially alive. As this declaration is made at the time the grantor is of sound mind, it is likely to have significant force with health care providers if there is a question whether life support should continue.

WHAT HAPPENS IF I DON'T HAVE A REPRESENTATION
AGREEMENT OR POWER OF ATTORNEY

If you don't have an enduring power of attorney and/or you don't have a representation agreement, if you become mentally infirm someone would have to apply to the court to have a committee appointed to look after your financial affairs or the Public Trustee will do the job. Health care decisions would be made according to the Health Care (Consent) Act and Care Facility (Admission) Act. This act provides for a hierarchy of individuals to make decisions. For example, a spouse has priority over children and then all adult children would have equal rights. Obviously, if there is no spouse and the children cannot agree on proposed health care, it is highly unlikely that a proactive decision not to provide treatment would be made.

POWERS OF ATTORNEY VS. REPRESENTATION AGREEMENTS

I do not normally recommend a representation agreement for financial affairs, as they are quite a bit more complicated than most people require. A representation agreement is a good idea if the grantor wishes a number of alternate representatives, wishes there to be a monitor appointed to oversee the decisions of the representatives, wishes the appointment of the representative to be conditional upon mental infirmity or wishes only certain powers to be granted to the representative. In most husband and wife situations, there is a great deal of trust and a representation agreement is not required for financial decisions. Powers of attorney are usually less expensive to prepare.