Jane was born in Winnipeg and attended schools in Toronto and Switzerland. She received a BA in Economics from the University of Victoria and worked in investments and then in international trade research in Canada, England and Thailand.

 When her children were in high school, Jane received an LLB from the Law School at the University of British Columbia. After articling with BC Public Interest Advocacy Centre, she received an LLM from the University of Bristol, England. Her Masters courses were in labour and welfare rights, and human rights.

After a few years in private practice, Jane took the position of Executive Director and supervising lawyer at TRAC Tenant Resource & Advisory Centre in Vancouver.

She is very pleased to join BCCEAS as Executive Director and is looking forward to working hard with the BCCEAS team to provide legal information and assistance for vulnerable seniors.

Protect Yourself! is composed of two workshops:

Module 1: Powers of Attorney & Joint Accounts

Module 2: Frauds, Scams & Telemarketing

They contain information on a number of different topics,  such as powers of attorney, joint accounts and joint ownership of property, frauds and scams and tips for assisting an older adult who is being financially abused. These topics are covered through presentations and through illustrated scenarios.

The Financial Literacy 102 videos can be viewed as a set or can stand alone and be incorporated into workshops, presentations and different training events. The accompanying guidebook, Financial Literacy 102 – A knowledge based approach to preventing financial abuse of older adults: A guide for professionals, is also available for sale. The material in these videos was developed in partnership with the Canadian Centre on Elder Law.

Section 1 – Introduction to the series

This video is an introduction to the Financial Literacy 102 video series.

Section 2 – Planning ahead: Financial and legal decisions

This video provides an overview of capacity and substitute decision making.

Section 2 – Example scenario #1 (Power of Attorney) This example scenario illustrates some questions to consider before signing a Power of Attorney document.

Section 2 – Example scenario #2 (Power of Attorney) This example scenario illustrates some additional questions to consider before signing a Power of Attorney document.

Section 3 – Frauds and scams

This video provides an overview of frauds and scams. It highlights several examples of types of scams, including the “new best friend” scam, the “home renovation” scam, the “grandparent” scam, and email scams. It also offers ways to recognize and prevent these situations, and tips for protecting personal information.

Section 3 – Example scenario (Identity theft) This video answers many important questions about what identity theft is, what it looks like and what steps can be taken to prevent it.

Section 4 – Closing remarks

This video summarizes the options you have for helping an older adult is in a financial abuse situation, and outlines some of the contextual difficulties an older adult may be facing (such as isolation, pressure and embarassment).

The purpose of this guidebook is to enhance your own knowledge in relation to financial abuse of older adults as well as financial literacy and financial planning for older adults. This publication is also intended to serve as a tool for in-house teaching of staff and volunteers.

It is important that all professionals who deliver services to older adults learn to recognize elder abuse and neglect and identify how they should respond to concerns regarding abuse and neglect in the context of their own practice. However, specific competency based educational modules need to be developed for each professional group. This is especially true for all levels of responsibility within the financial sector, ranging from consumer-facing staff to internal management positions.

Your organization may have polices or procedures in place regarding elder abuse and neglect. We encourage you to become familiar with those documents.

This publication reflects the law on June 1, 2010.

Important Considerations

You may be asked to share ownership of your property (house, car, bank account, etc. with another person who is offering to help you “manage your affairs”.  This person(s) may be an adult child or children, a close friend or an acquaintance.  It may sometimes seem easier, more convenient, or simply a matter of estate planning to transfer all or part ownership of your property to another person(s), however, it is important to understand any and all legal implications before making such decisions.

Joint Tenants vs. Tenants-in-Common

If you are thinking about sharing ownership of your property, whether it be real property (like your house) or personal property (like your car or bank account), you should be aware of these general distinctions between the legal concepts of “joint tenancy” and “tenancy in common.”

Joint Tenancy

Nature of the Ownership

Let’s say you are the sole owner of property, such as your house, and you are considering adding another person(s) as an owner.  If you transfer the ownership as a “joint tenancy,” it means that the property is owned by you and whomever you transfer ownership to in equal proportions.

For example, if there are two owners (yourself, and, say, an adult child), each person owns ½ of the property;  if there are three owners, each owns ⅓ of the property;  and so on.

Each joint tenant has an identical interest and holds an equal right to use the whole of the property (including the house).  In other words, if you transfer part of your ownership in your house to another person in joint tenancy, whether a family member, friend, or someone else, that person or persons have the same legal rights to that house as you do.  This is an important point to understand, particularly if you are contemplating sharing the ownership of your house or other property in joint tenancy with a person from outside your family with whom you may have just recently formed an acquaintance.

What happens upon death?

Also, if you die before the other joint tenant(s), your interest (ownership) in the property will, in most cases, automatically transfer (called the “right of survivorship”) to the other joint tenant(s).  In other words, your interest will not “pass” with your estate and, therefore, you will not be able to give the property to other children or other beneficiaries through your will.

Tenancy-in-Common

Nature of ownership

On the other hand, if you transfer the ownership in your house as a “tenancy-in-common,” each owner holds a separate and distinct interest in the property, not necessarily in equal shares (for example, two owners might have shares of ⅓ and ⅔, or ¼ and ¾). If the portions of the interests owned are not specified on the land title certificate, it is assumed in law that the shares are equal as between the owners (for example, if 2 owners, both would have a ½ interest;  if 3 owners, each would have a ⅓ interest).

What happens upon death?

Upon the death of one of the tenants-in-common, their interest “passes” with their estate.  That is, you can give your share of the property to someone in your will, or if you die without a will, it will “pass” to the closest relative according to BC laws of intestacy (which means dying without a will) even if the person inheriting the share of property was not formerly one of the tenants-in-common.  This differs significantly from a joint tenancy and should be considered when deciding on the type of shared ownership that you desire.

What is the nature of the ownership if the nature of ownership is not stated?

If the ownership or title document says nothing about the nature of the ownership, as a general rule BC law assumes that:

• For personal property (eg. cars, bank accounts, etc), the ownership is a joint tenancy; and
• For real property (eg. house), the ownership is a tenancy-in-common.

Legal Complexities to be Aware of

There are a number of legal complexities that might arise in relation to shared property.  These are examples only.  It is beyond the scope of this article to explain all the legal complexities and individual circumstances that arise in this area of law.

SITUATION 1:  You may have thought you entered into a joint tenancy, but you discover that it was never created in the first place, or it has been “severed” without your knowledge.

Even though 2 or more names appear as joint tenants on a property ownership document, a joint tenancy will not automatically be created or continue in law.  In order to create and maintain a joint tenancy, in law, there must be the existence of the following four “unities” at the time the property is transferred and throughout the co-ownership:

• Unity of title – property transfer happens under the same legal instrument;
• Unity of interest – interest of each joint tenant must be identical in nature, extent, and duration;
• Unity of possession – each joint tenant has an undivided possession of the whole property; and
• Unity of time – the interest of each must vest (meaning to take effect) at the same time.

Therefore, in law, if there is a break in one of the four unities, the joint tenancy is said to be “severed” or broken and the ownership reverts to a tenancy-in-common.

For example, if one of the joint tenants mortgages or transfers their interest (even if it is transferred to himself or herself), this action will sever the joint tenancy and, in law, you and the other owner(s) will become tenants-in-common.

This is an important point to understand:  even if you believe you share ownership in joint tenancy with someone, the other joint tenant(s) can break or sever the joint tenancy without your knowledge or consent.  For example, a joint tenant can transfer their interest to someone else or themselves without involving you in the transfer and the effect of it may be to sever the joint tenancy and create a tenancy-in-common between you and the other person or someone else entirely.  The result is that on the death of the other owner(s), their portion of the ownership passes with their estate(s), instead of the property ownership coming back to you, as it would under a joint tenancy.

SITUATION 2:  You may think you have transferred ownership of part of your property to a relative to avoid probate, but they discover after your death that you only transferred the “legal title” and not the “beneficial interest” in the property.

Even with jointly held property, there is a difference in law between having the “beneficial interest” and the “legal title” to the property, in that:

• beneficial interest means having the “real” or ‘true” ownership – for example, you may have a beneficial interest because you paid for the property; and
• legal title means that the holder of the title holds the property for the true owner (the one with the beneficial interest) – for example, you may wish to give someone else legal title to your property so that they can help you manage your affairs, but not the right to use the property for their own benefit.

Therefore, just because you think you have transferred a share of your property to another person, it is important to consider the legal effect of the transfer.  In other words, did you transfer the type of interest (beneficial or legal or both) that you intended?

It is often prudent to enter into agreements to clearly confirm what your intentions are about the nature of the transfer.  That is:

• if you are gifting the property to someone and want the beneficial interest to be included in the transfer, you can consider stating your intentions in a legal document (sometimes called a “Deed of Gift”); and
• you can also enter into legal arrangements declaring that the beneficial interest does not transfer to the joint owner (sometimes called a “Declaration of Bare Trust and Agency Agreement”).

If only the legal, and not the beneficial, interest is transferred, then the surviving owner likely holds the asset in trust for the estate of the deceased person..  This is significant because you may have wanted to enter into a joint tenancy to effect a transfer of the whole title of the property to the other owner after you die, but without the proper supporting documents as evidence of your intentions, this may not, in law, have taken place.

Therefore, documentation of your intentions requires careful drafting and assistance from a property or estate lawyer to ensure that what you want is properly documented.  This is critical because, upon your death, this documentation may become the primary source of information used to determine how you intended the property to be transferred.

SITUATION 3:  You want to gift some of your property to your adult child prior to your death, or outside of anything that is in your will, but you have heard about a presumption in law that would undo the effect of the gift if you don’t record your wishes properly.

If you wish to “gift” a portion of your property to your adult child(ren) outside of your will so it does not make up part of your estate, there is an important presumption that exists in law that you should be aware of.  Normally, without evidence of a true gift, the law will presume that a transfer without payment to another person was intended to be done merely to assist in the management of the person’s affairs (sometimes called a resulting constructive trust).  In effect, the law says that the person holds the property “in trust” for the property owner and that, upon the death of the property owner, the property passes according to the deceased property owner’s estate.

This approach was confirmed by the Supreme Court of Canada in the case of Pecore v. Pecore where the court made a decision that this presumption applies in the case of property transfers as between parents and their adult children.  The presumption is “rebuttable” in that it will be up to the adult child to provide evidence or show that their parent intended the property to transfer to the adult child, beneficial interest and all.  If they fail to do this, it will be presumed that the adult child became an owner solely to assist with the management of their parent’s financial affairs.  As such, the property will pass according to the parent’s estate (according to their will or, if there is no will, according to the laws of “intestacy”).

It is important to be aware of this presumption if you want to gift your property before your death to your adult children.  Your intentions should be clearly documented, as discussed above.  It is also important to be aware of this presumption if you discover, after the death of a loved one, that their property was “gifted” to adult children.  The adult children will need to point to some evidence of the deceased parent’s intention to gift the beneficial interest to them in order to uphold the transfer.

Prudent Planning: Points to Consider

Therefore, as a general rule, if you are being asked to share ownership of your property with another person:

• obtain independent legal advice, that is, see your own lawyer – not the same lawyer that is acting for the person who you are considering transferring ownership to – about the rights and responsibilities that follow from making the transfer of ownership that you are contemplating;
• make sure you clearly understand the nature of the ownership being suggested and the purpose for the suggested change in ownership;
• consider whether there are other ways to accomplish the same purpose,, and if the purpose is merely to give someone the ability to be able to make legal decisions about that property when you are no longer able to do so then consider entering into an Enduring Power of Attorney, because you can revoke a Powers of Attorney as  long as you are still mentally capable of doing so; and
• if you are transferring to an adult child, make sure your intentions are properly recorded at the time of transfer.

The above BC Centre for Elder Advocacy and Support public legal education article was written in 2009.  It contains general information only and is not a substitute for getting legal advice about your particular situation.

Introduction – The Importance of Planning Ahead

It is possible that, some day, an illness, injury or disability may render you unable to make your own decisions.  For example, a serious accident may leave you unable to make decisions regarding your finances, your health and personal care and other matters.  Alternatively, an illness such as Alzheimer’s disease may affect your ability to make decisions and look after your own affairs.

Such “mental incapability” is more common than we may want to believe.  It therefore can be important to plan ahead and set up arrangements in advance – while you are still capable of doing so – if you wish to ensure that the person or persons of your choice will be legally able to “step into your shoes” and make important decisions for you, if you become incapable of making decisions on your own.  If an injury or illness renders you incapable and you have not set up appropriate arrangements in advance, normally a “committee” (legal guardian) will need to be appointed by the court to look after your affairs.  The court process is time-consuming and expensive, and there is no guarantee that the court will appoint the person you would have wished to look after you affairs or grant the powers desired.  Advance planning on your part can enable your loved ones to avoid the difficult court process and assist in providing a smooth transition to a period in your life in which you may be incapable of handling your own affairs.

For further information on the importance of planning ahead for incapability and also the “committeeship” process, see the BC CEAS articles entitled The Possibility of Incapability:  Why Plan Ahead? and Committee:  An Incapable Person’s Decision Maker. (Note: Links coming soon!)

What Legal Documents can I use to Plan Ahead for Possible Future Incapability?

Under BC laws, there are two main types of legal documents that allow you to plan for the future by designating another person or persons who will make your decisions for you, or assist you in making decisions, if you should become mentally incapable at some point in the future.

A power of attorney is the chief planning document used for giving another person (called your “attorney”) the legal authority to take care of your financial affairs for you, if you end up needing help in this area.  (There are different types of powers of attorney, however an “enduring” power of attorney is the type that is used for prior planning for incapability.  It continues in effect – or endures – if you become mentally incapable.)  However a power of attorney gives your attorney the authority to take care of only your financial and legal affairs.  It does not enable him or her to make decisions about your personal and health care.  For example, a power of attorney would not allow your attorney to consent to health care on your behalf or to make decisions about where or with whom you will live.

Under BC laws, if you want to ensure that the person or persons of your choice are able to make decisions about your personal and health care if you become mentally incapable at some point in the future, you need to make a representation agreement.  If you wish, you can also give your designated person(s) the authority to make decisions about your legal and routine financial affairs in your representation agreement (and, under current laws, also significant financial decisions such as the sale of your house).

For further information on powers of attorney, see the BC CEAS article Powers of Attorney.

What is a Representation Agreement?

A representation agreement is a legal planning document that allows you to choose the person or persons who will make important decisions for you, or assist you in making decisions, if you become incapable of making decisions on your own.  The person you so choose is called your “representative.”

As noted above, in a representation agreement you can give your representative(s) the authority to handle personal and health care matters, as well as your legal and routine financial affairs.  Under current BC laws representation agreements can also cover significant financial matters such as the purchase or sale of real estate.  You can specify in your representation agreement what your representative is to consider when making decisions on your behalf, and also when, and under what circumstances, the agreement is to take effect.

Who can make a Representation Agreement?

Any adult aged 19 or older who is capable of making a representation agreement may do so.  Mental capacity is the ability to make reasoned decisions.  A person who is capable must understand the context or nature of a decision, and appreciate the possible consequences of a decision.  According to BC law every adult is assumed to have capability.  This means that, until it is proven otherwise, a court will assume that a person is capable of making his or her own legal medical and financial decisions.   It is important to note that capability is a legal term and that it applies to the particular decision that needs to be made.  Some people with diminished capacity may not be able to make some decisions but may be able to make others.  For example, someone may have a cognitive deficit that prevents him or her from making decisions about finances, but she or he may still be perfectly capable of making decisions about health care.

Are there Different Types of Representation Agreements?

Under the BC Representation Agreement Act (the “Act”), there are generally two different types of representation agreements that you can make:  An agreement with only “limited powers” – sometimes called a section 7 representation agreement  – and an agreement which includes  “general powers” – sometimes called a section 9 representation agreement.  In general, the types of decisions that you can authorize your representative to make in a section 7 agreement are important, but generally not as intrusive or potentially controversial as those that can be included in a section 9 agreement.  A section 7 agreement is generally sufficient to cover your routine, day-to-day care needs.

Section 7 Agreements

Section 7 of the Act allows you to make a basic representation agreement that covers your routine daily living requirements.  In a section 7 agreement you can authorize your representative(s) to help you make decisions, or to make decisions on your behalf, about any or all of the following:

• your personal care;
• the routine management of your financial affairs, including paying your bills, receiving and depositing your pension and other income, purchasing your food, accommodation and other services necessary for your personal care, and making investments for you;
• minor health care, including routine tests and dental treatment;
• major health care, including major surgery, major diagnostic or investigative procedures,  treatments involving a general anesthetic and radiation and other forms of therapy, but not including decisions to refuse life-supporting care or treatment and certain other significant health care decisions (such “bigger” health care decisions need to be authorized under a section 9 agreement); and
• obtaining legal services for you and instructing lawyers with respect to legal proceedings (except for the commencement of divorce proceedings, which cannot be authorized).

Section 9 Agreements

Section 9 of the Act allows you to make a representation agreement that gives your representative the authority to make very significant medical and other decisions for you, including the decision to refuse life-supporting treatment.  Things you can authorize your representative to do on your behalf in a section 9 agreement include the ability to:

• physically restrain or move you when necessary, despite your objections at the relevant time;
• give consent to specified kinds of health care, in the circumstances outlined in your  agreement, even if you are refusing to give your consent at the applicable time;
• refuse consent to life-supporting care or treatment and refuse or give consent to other specified kinds of health care;
• admit you to a nursing home or any other kind of care facility;
• make arrangements for the temporary care, education and financial support of your minor children and any other persons who are cared for or supported by you; and
• generally do, on your behalf, any thing that can be done by an attorney acting under a power of attorney, such as, for example, running your business or buying and selling real estate.  (It is expected that the legislation will be changed in the near future, so that the authority to handle significant financial matters will no longer be able to be included in representation agreements.)

To make an agreement that contains any of the section 9 provisions (i.e. a section 9 agreement), the law currently requires that you consult with a lawyer.

When Can I Make a Representation Agreement?

As described above, you will be presumed capable of making the decision to enter into a representation agreement unless it has been proven otherwise. This means you must be able to understand and appreciate the context of the agreement and any consequences that may arise from it.  The law gives you the benefit of the doubt when it comes to deciding whether or not you are legally capable of making a representation agreement.  Under the law you are presumed to be capable of making a representation agreement – and presumed to be capable of handling your own affairs – until the contrary is demonstrated.

Special Requirements for a Section 9 Agreement

Since a section 9 agreement authorizes your representative to make more complex or difficult decisions on your behalf, you are required to consult with a lawyer before the Representation Agreement can be finalized.  The purpose of this law is to prevent anyone from entering into a section 9 agreement if that person is not capable of fully understanding the consequences of doing so.  .

Differences Between Section 7 and Section 9 Agreements

Often, a person who is not legally capable of making an agreement containing section 9 provisions is still able to make a section 7 agreement.  A section 7 agreement is generally sufficient to cover your routine, daily care needs.  Under BC laws, you may still make a section 7 agreement even if you are or have become incapable of making other legal decisions or of managing your health care, personal care, legal matters or financial affairs.

Who Should I Name as My Representative?

You can choose any capable individual to act as your representative, so long as he or she is 19 years of age or older and willing to act as your representative.

It is very important that you give careful consideration about who you wish to choose to act as your representative.  Think about what you want your representative to do for you, and who is best able to do those things.  Choose someone you trust, and who understands the values and beliefs that guide your decision making.  If the person will be handling financial matters for you, choose someone who is good at handling money.

If you have no relatives or friends who are willing and able to serve as your representative, you could approach a credit union or trust company, or the Public Guardian and Trustee of BC, about acting as your representative.  In each case, if the entity agrees to act as your representative, you will be charged fees for their services.  If you appoint a credit union or trust company to be your representative, their authority must be restricted to financial and legal matters only (i.e., you cannot authorize a credit union or trust company to make health or personal care decisions for you).

Can I Choose More than One Representative?

You can choose more than one representative in your representation agreement, if you wish.  If you do this, you can assign to each person different areas of authority (for example, one handling financial matters and the other your personal and health care), or the same areas of authority.  If you appoint more than one person in the same area of decision-making responsibility, the law states that they must act unanimously, unless you give them permission in your representation agreement to act independently.

There are good reasons to permit representatives to act independently.  For example, if one representative is temporarily unavailable due to vacation or illness, the other can take over on his or her own, and decisions can continue to be made on your behalf.  On the other hand, requiring your representatives to make decisions together will ensure that there is always a “double check” on decisions made on your behalf.

Can I Choose an Alternative Representative?

You can also choose one or more alternate representatives who can act in place of your first representative if he or she becomes unwilling or unable to act for any reason.  If you name an alternative representative, you must specify in your agreement the circumstances when your alternative is permitted to act as your representative.

Your Representative’s Powers

The breadth of your representative’s powers depends on what powers you give them in your representative agreement.  In planning for possible future incapability, people often choose to make two legal documents:  A power of attorney, giving the person of their choice (their “attorney”) the authority to handle their financial and legal affairs, and a representation agreement, giving the person of their choice (their “representative”) the authority to make personal and health care decisions on their behalf.  If you choose to do this, your chosen representative will be authorized in your representation agreement to handle your personal and health care matters only – and, further, only those personal and health care matters that you authorize in your agreement.

Your Representative’s Responsibilities

Your representative is required to act honestly and in good faith, to exercise the care, diligence and skill of a reasonably prudent person, and to act within the authority given in the representation agreement.

Your representative must also keep careful records of the activities done on your behalf and give the records to you, your monitor and/or the Public Guardian and Trustee upon request.  If your representative is authorized in your representation agreement to handle your financial affairs, he or she normally must keep your assets separate from his or her own.

When helping you make decisions, or when making decisions on your behalf, your representative generally must consult, to the extent reasonable, with you to determine your current wishes, and comply with those wishes if it is reasonable to do so.

If your current wishes cannot be determined or it is not reasonable to comply with them, your representative is required to comply with any instructions or wishes you expressed while you were capable.  If your instructions or expressed wishes are not known, your representative is required to act on the basis of your known beliefs and values, or in your best interests, if your beliefs and values are not known.

Can I Choose a Monitor?

If you wish, you can appoint a monitor in your representation agreement.  If you do this, your monitor will be required to oversee the activities of your representative(s) and ensure that they comply with the terms of your representation agreement.

If your agreement authorizes your representative to handle routine financial matters for you (for example, paying your bills or depositing your pension income), then you are legally required to appoint a monitor if the representative you choose is not your spouse or a credit union, trust company or the Public Guardian and Trustee.  However, if you choose two or more representatives who are required to make unanimous decisions on these financial matters, or if you have consulted with a lawyer or other prescribed person in making your agreement, then you are not required to appoint a monitor.

When does my Representative Agreement come into Effect?

Unless you state otherwise in your agreement, your representative agreement will come into effect as soon as it is signed and witnessed.  However it does not have to be used right away if you do not need help yet.  You may wish to have a trusted third party hold the document with instructions that they are to release it to your representative only when it is needed.

If you do not want your representation agreement to come into effect right away, you must specify in your agreement the “triggering event” that will cause the agreement to come into effect, and how the event is to be confirmed and by whom.  You could, for example, provide that your agreement is to come into effect when your family physician is of the opinion – or when certain trusted friends jointly agree – that you are no longer able to make decisions.

Can my Representation Agreement be Changed or Cancelled?

You can change or cancel (revoke) your representation agreement at any time, provided you are capable of doing so.  You should review your representation agreement at least once a year to ensure that it still reflects your wishes and addresses all the decisions that may need to be made on your behalf, and that the representatives named are still willing and able to act as your representative if and when needed.

As long as you are mentally capable you can cancel (revoke) your agreement at any time, but  you must give written notice of the revocation to your representative(s), each alternate representative and your monitor (if any).

Preparing a Representation Agreement

There is no legally required format for a representation agreement.  However, there are specific legal requirements with respect to the signing and witnessing of representation agreements, and also with respect to required certificates which must be signed by your representative(s), witnesses and others.  If your representation agreement is not properly signed and witnessed and the necessary certificates completed (in the case of a Section 9 Representation Agreement) it may not be valid.

Who will make Decisions for me if I don’t have a Representation Agreement?

Health Care Decisions

In BC, if an adult is incapable of giving or refusing consent to health care, in accordance with BC Laws there is a default list of “substitute decision makers” can consent to medical treatment and can make health care decisions on behalf of the incapable adult if the adult has not appointed a representative to make health care decisions in a representation agreement and no committee has been appointed.

Under current BC laws, healthcare providers are required to choose as a substitute decision maker from the first available, qualifying person, in listed order, on the following list:

• your spouse
• your child;
• your parent;
• your brother or sister; or
• anyone else related to you by birth or adoption.

To qualify as a substitute decision maker to give or refuse consent to health care on your behalf, the individual must, among other things, have been in contact with you during the preceding 12 months and have no dispute with you.  If there is no such person able and willing to act or there is a dispute about who is chosen, then the health care provider must choose a person authorized by the Public Guardian and Trustee of BC.

There are drawbacks to not having a representation agreement in place and simply relying on this “default list” of people who will make health care decisions for you if you become incapable.  You will have no control over who ends up making health care decisions for you as the “default list” must be followed in the proper order, and you may not end up having the individual you want making decisions for you.  Also, there are certain limits on the types of health care that substitute decisions makers are permitted to consent to on your behalf, and their authority is temporary.  Further, the “default list” applies only to health care decisions – it does not extend to financial or personal care decision making.

Other Decisions (Financial and Personal Care)

As noted above, if you do not have a power of attorney, representation agreement or other legal document appointing someone to make your financial decisions for you when you become mentally incapable, then your loved ones will need to go to court to get the legal authority to handle your affairs (this is called a “committeeship”).  Going to court may be prohibitively expensive for your loved ones.  If you have no loved ones who are able to go to court to get a “committeeship”, then the Public Guardian and Trustee will step in to find an appropriate substitute decision make and to get a court order for that person to be appointed as “committee”.

Either way, because you will not have a say, the person who is chosen may not be there person you would wish to have managing your affairs.   Enduring powers of attorney (which cover financial and legal matters) and representative agreements (which can cover financial, personal and/or health care matters) are relatively simple planning tools that can ensure that the persons of your choice are able to easily step into your shoes and manage your affairs when you become incapable of doing so, without having to go through the court process.

Nidus Registry for Enduring Powers of Attorney and Representation Agreements

The Representation Agreement Resource Centre has an online registry called the Nidus Registry where you can register your enduring power of attorney or representation agreement, if you wish. The fees are $25.00 for set-up and the first registration, and $10.00 for each additional registration. You can register yourself by going to www.nidus.ca on the Internet, or ask family or friends to help. You can also phone the Nidus Registry and Resource Centre for help with registering.  Their phone number is 604-408-7414.

Other Resources

Public Guardian and Trustee of BC
www.trustee.bc.ca

Representation Agreement Resource Centre
www.rarc.ca

Clicklaw
www.clicklaw.bc.ca

BC Branch of the Canadian Bar Association (CBA), Lawyer referral service
604-687-3221 or 1-800-663-1919

Dial-a-law
604-687-4680 or 1-800-565-5297
www.dialalaw.org

The above BC Centre for Elder Advocacy and Support public legal education article was written in 2009.  It contains general information only and is not a substitute for getting legal advice about your particular situation.

This website was created to provide resources for academics and professionals working on social and legal issues related to elder abuse and the legal rights of older adults.

What is a Power of Attorney?

A power of attorney is a legal document that gives another person the power to take care of your financial and legal matters for you. The person you give this power to is called the “attorney,” and you are called the “donor.” (Here, “attorney” does not mean lawyer.)

A power of attorney gives your attorney the authority to take care of only your financial and legal affairs. This could include paying bills, doing banking, or selling real estate on your behalf. It does not allow him or her to make decisions about your personal or health care.

What are Powers of Attorney Used For?

There are many reasons why a person might choose to make a power of attorney. One reason is that they may need temporary help taking care of their financial matters if they will be away for a while. For example, if you are going on vacation and will need some banking done while you are gone, you can have a power of attorney drawn up giving a family member or other person the power to take care of this while you are away. You could also have a power of attorney drawn up if an illness or injury makes it difficult for you to handle your own financial affairs.

People also commonly make a power of attorney as a form of advance planning, to ensure that a family member or other person of their choice is legally able to take care of their financial affairs if they become “mentally incapable” of managing their own finances in the future. This kind of power of attorney is often called an “enduring” power of attorney. It continues in effect – or “endures” – even if you become mentally incapable.

It is important to know that, if you should become mentally incapable of making a power of attorney, it is “too late” to do so if you don’t already have one in place. You have to plan ahead and do it in advance. If you do not have a legal power of attorney appointing someone to act for you in place when you become mentally incapable, then your loved ones will need to go to court to get “committeeship” (the legal authority to handle your affairs). Going to court is an expensive and time consuming process, and there is no guarantee that the court would decide to grant the legal powers asked for. An enduring power of attorney is a simple tool that ensures that the person of your choice is able to easily step into your shoes and manage your finances when you become incapable of doing so, without having to go through the court process.

To create an enduring power of attorney, you should ensure that the following sentence is included in your power of attorney document:
“In accordance with the Power of Attorney Act, I declare that this power of attorney may be exercised during any subsequent mental infirmity on my part.”

Who Should I Name as My Attorney?

You can choose any capable person to act as your attorney, so long as he or she is 19 years of age or older and willing to act as your attorney. It is very important that you give careful consideration to who you choose to act as your attorney. He or she will have significant power over your financial affairs, and significant responsibilities. Choose someone who you absolutely trust, and who is good at handling money. While most people choose their spouse, child or other loved one to be their attorney, careful thought should always be given to the appropriateness of the appointment. In addition to the skills and trustworthiness of the person, you might consider whether the responsibility of acting as your attorney could cause undue stress or strain on the person or on your relationship.

If you wish, you can choose more than one attorney. If you do this, you need to write in the document whether you want them to have to act together, or whether they can act independently. You can also name one or more alternate attorneys who can take over if your first attorney becomes unable or unwilling to act.

If you have no relatives or friends who are willing and able to serve as your attorney, you can choose a trust company, or the Public Guardian and Trustee (a government official), to act as your attorney. In either case, you will be charged fees for their services.

Your Attorney’s Powers

The breadth of your attorney’s powers depend on what powers you give them. For example, if you create a limited power of attorney giving your son only the power to deposit your pension cheques, then your son will have the legal power to do only that – deposit your pension cheques. However, if you create a general power of attorney that does not have any limits in it, then your attorney will generally have the power to do anything financial or legal that you can do for yourself. This could include, for example, cashing your cheques, withdrawing money from your bank account, dealing with your income taxes or buying or selling property on your behalf. (However, there are special requirements that apply if you want your attorney to be able to deal with real estate property – see Powers of Attorney for Real Estate below.)

Your Attorney’s Responsibilities

Your attorney is legally required to act honestly and in good faith, in your best interests. Your attorney must keep careful records of the financial activities done on your behalf and give the records to you upon your request, and must keep your affairs separate from his or her own.

When Powers of Attorney Start and End

A power of attorney comes into effect as soon as it is signed, however it does not have to be used right away if you do not need help yet. Make sure your attorney knows when you want him or her to start acting on your behalf.

If you prepare a limited power of attorney for a specific purpose or a specified period of time (for example, to handle your banking while you are out of town), your power of attorney will expire when the stated tasks have been completed and/or on the end date noted in the document.

If you instead prepare a general attorney, subject to some exceptions your power of attorney will normally continue in effect indefinitely until you revoke it or until you or your attorney die (unless you have named more than one attorney or an alternate to act in the event an attorney dies). Also, unless you have created an “enduring” power of attorney by including an enduring clause as discussed above, your power of attorney will end if you become mentally incapable.

Revoking a Power of Attorney

As long as you are still mentally capable of doing so, you can normally revoke (cancel) your power of attorney at any time. To revoke a power of attorney, you should notify your attorney in writing that the power of attorney is revoked effective immediately. Also notify in writing all banks, businesses, organizations and individuals that your attorney deals with, advising them that the power of attorney has been revoked and asking them to destroy all copies of the document they have.

Making a new power of attorney does not automatically cancel an old one. It is possible to have more than one power of attorney in effect at the same time. If you want to make sure you have only one power of attorney in effect, when you make a new power of attorney ensure that you write at the beginning “I revoke any and all powers of attorney I have previously made.”

Banks’ Power of Attorney Forms

Banks often have their own power of attorney forms they want their customers to use. If you have your own power of attorney that covers banking matters, they have no right to require you to use their form. You could ask to speak with the bank manager or, if necessary, call a lawyer.

Powers of Attorney for Real Estate

If you want your attorney to have the power to sell your real estate property or deal with mortgages or easements for you, there are special requirements. You must sign the power of attorney in the presence of a lawyer or notary (and the lawyer or notary must also sign), and you must register the power of attorney at the land title office and comply with other legal requirements. If you want your power of attorney to include these powers, consult with a lawyer for advice.

Preparing a Power of Attorney Document

There are power of attorney forms in the Schedule to the British Columbia Power of Attorney Act, available online on the Internet. There are also sample BC power of attorney forms and kits available online and in legal publications you can find in the library and in bookstores. However, it is best to get some professional help, especially if you have a complicated or unusual situation. As noted above, if your power of attorney is to deal with real estate, you must go to a lawyer or notary public.

Pre-planning for Health Care Decisions

A power of attorney covers financial and legal matters only. If you want to plan ahead and choose who will make health care and treatment decisions for you when you no longer can, you can make what is called a “Representation Agreement” naming whoever you want to make those decisions.

Nidus Registry for Enduring Powers of Attorney and Representation Agreements

The Representation Agreement Resource Centre has an online registry called the Nidus Registry where you can register your enduring power of attorney or representation agreement, if you wish. The fees are $25.00 for set-up and the first registration, and $10.00 for each additional registration. You can register yourself by going to www.nidus.ca on the Internet, or ask family or friends to help. You can also phone the Nidus Registry and Resource Centre for help with registering. Their phone number is (604) 408-7414.

This BC Centre for Elder Advocacy and Support public legal education article was written in 2009. It contains general information only and is not a substitute for getting legal advice about your particular situation.