With powers of attorney, the attorney's authority can be general or be limited to specific acts that the attorney can perform. Some common acts include the payment of bills, investment of certain assets, sale of property, or making health care decisions. This ability is given in advance by you, the “grantor”, “donor”, or “maker” of the document.
There are two types of power of attorney documents in BC — enduring power of attorneys and representation agreements. We’ll break down the difference between the two types of POAs and help break down the process of making your own power of attorney documents.
Why should BC residents have a power of attorney?
Your attorney is responsible for making decisions about your property, financial affairs, personal life, and medical care, if in the event of an emergency if you are unable to do so yourself. In many cases, you can also help your attorney by outlining these decisions in advance.
Despite what many people believe, power of attorney is not only for seniors and those considering end-of-life-care. POA documents offer protection in the event of incapacitation, regardless of your age. This includes anything from physical accidents to medical emergencies.
A power of attorney is something you never hope will come into effect, but it can protect your finances, health, and personal decisions if you were to become incapacitated. A great way to think of your POA as a form of disability insurance, it protects you while you’re alive. In contrast, your legal will would be like a form of life insurance, which takes care of your loved ones after you pass away. A will can also be contested.
Read More: What Is The Difference Between Power Of Attorney And An Executor In Canada?
What is an enduring power of attorney in BC?
In BC, an enduring power of attorney gives someone you trust the power to make decisions on your behalf if you are medically incapable. An enduring POA gives your attorney the authorization to perform any acts you would be able to do, except make a will. Typically this includes paying your bills, maintaining property, managing investments, or even collecting any debt.
You are allowed to appoint multiple powers of attorney in an enduring power of attorney agreement. An alternate attorney can exercise authority in case your first attorney is incapable or unwilling to.
In this article, we are referring only to enduring powers of attorney, which continues past the point of mental capacity. Willful does not offer non-continuing (or limited) power of attorney documents at this time.
Why should BC residents have an enduring POA?
Enduring power of attorney documents protects you in the event you are incapacitated for any reason, including accidents and medical emergencies. Your POA will allow your attorney to conduct transactions on your behalf while you are unable to.
Your enduring POA ensures that your financial and other interests are protected, and in the hands of someone that you trust. You’ll feel better knowing that you won’t miss any bill payments and have any property maintenance issues during this time period. A great way to think about your POA is as a form of disability insurance, you hope it never comes into effect, but it can offer you protection while you’re still alive.
Without an enduring power of attorney, a family member might have to submit a court application to manage your legal matters if you become mentally incapable or pass on.
Does a power of attorney need to be notarized in British Columbia?
In BC, there are no requirements for your power of attorney document to be notarized. If you’ve followed the guidelines for signing and witnessing, you have a legal power of attorney document! Those guidelines are outlined in section 13 of the BC Power of Attorney Act. A notary public or attorney may act as a witness if you wish.
However, if you own land/property or plan to in the future, you may need to get your enduring power of attorney notarized in addition to having the document witnessed. In BC, if an attorney is transacting land on your behalf at some point in the future, your enduring power of attorney must be registered with the Land Title and Survey Authority in BC.
However, you do not need to get this done at the time you execute the document. Your enduring POA is still legally-valid as long as the document is properly signed and witnessed. This includes two witnesses and usually the support of a lawyer or notary public.
Some important things to remember about notarizing an enduring POA in BC.:
- You do not need to go through this process if you do not own or plan to own land/property in the future.
- Notarization is only required in BC in the event that your attorney is trying to sell or act on behalf of a property you own. It is not required to make the document legally-valid.
- You can notarize the forms in the future. If you become incapacitated and your attorney needs to act on your behalf in relation to property, they can take care of it at that time. Only the witnesses and attorneys need to fill out the forms with the notary. However, many choose to do it when they execute the document to reduce future stress for their attorney.
Advanced care planning in BC
Advanced care planning is the process of creating a plan for your future healthcare and end-of-life care needs. In British Columbia, the advanced care planning process includes writing down your healthcare preferences, selecting a decision-maker to act on your behalf, and learning about end-of-life care options.
Regardless of your age or current health, it’s never too early to start an advanced care plan. In the event something happens that leaves you unable to care for yourself, your healthcare wishes will be known. This avoids leaving these difficult decisions to your loved ones.
What is an advanced directive in BC?
An advanced directive is an optional document that’s part of advanced care planning. It enables you to express your wishes to accept or reject specific medical treatments (such as life support) if you’re unable to do so at the time.
If the need for a challenging healthcare decision arises, the advanced directive must be followed and nobody will have to make that decision on your behalf.
What is a living will?
A living will is a document that outlines your wishes and preferences for medical treatment or end-of-life care. It’s a more commonly used term for "personal directive" or "advanced directive.”
What is the difference between a living will and advanced directive in BC?
The terms “living will” and “advanced directive” are often used interchangeably and refer to the same type of document.
In British Columbia, your documented medical instructions are legally recognized as an advanced directive rather than a living will. British Columbia does not use living wills and instead uses representation agreements and advance directives to serve the same purpose for advance care planning.
What is a representation agreement In BC?
In British Columbia, a Representation Agreement is a legal document that appoints an individual, referred to as the representative, to assist or act on your behalf for matters related to health care and personal care. Your representative will become your substitute decision maker for decisions regarding your health care, housing, meals, and clothing in the event of your incapacitation.
Your representative is the voice of your healthcare decisions if you are unable to communicate yourself. They are also responsible for communicating life support measures and other specific instructions you have outlined in your representation agreement.
Your representative and healthcare providers must follow the decisions outlined in your advanced directive. In the event that an advanced directive doesn’t exist or doesn’t cover the healthcare decision in question, your representative will act as your substitute decision maker.
Most people choose a spouse, relative, or close friend who is familiar with your wishes and has good judgement, to be their representative.
What is the difference between a representation agreement and an enduring power of attorney?
A enduring power of attorney document is traditionally used to appoint someone to manage your legal and financial affairs in an emergency or situation where you cannot (such as travelling). A power of attorney document can be written to empower the POA with authority over health care and personal care decisions, although this isn’t required.
A representation agreement deals with personal, medical and health care responsibilities. By appointing a representative, you ensure that it is someone you trust making decisions on your behalf in case you aren’t able to.
Why should BC residents have a representation agreement?
It’s commonly misunderstood that representation agreements and advance directives are only for seniors and individuals considering end-of-life care. However, you never know when you may experience a medical emergency that will require someone to make medical and personal decisions on your behalf.
Having a representation agreement can provide you peace of mind that your wishes for pain relief and life support will be communicated. You will also help guarantee that any personal and medical decisions will be made by someone that you trust. This can also help reduce future stress and burden for loved-ones, so they aren’t left making these difficult decisions on your behalf in the event of an emergency.
Does a representation agreement need to be notarized in BC?
Representation agreements do not need to be notarized in BC. Like an enduring power of attorney, you need two independent witnesses to sign the agreement – neighbours or friends work! You can have a notary public sign if you’d like.
Why do I need a representation agreement?
Appointing a representative protects you and your wishes in case of emergency or extenuating circumstance. They can make decisions about your personal care, taking your known beliefs and any directives into account.
Having a representative reduces pressure on you and your family to ensure that someone is representing your wishes in a situation where you are physically or mentally incapable.
How can I make an enduring power of attorney and representation agreement in BC?
It’s easier than you think to make a power of attorney and representation agreement in BC. There are several ways to get a legal power of attorney:
- Online power of attorney platforms - Online platforms like Willful are a convenient and affordable option for anyone looking for personalized POA documents. Willful’s dynamic platform asks you all the important questions, so you can be certain your document reflects your wishes. We also include detailed instructions on the requirements for witnessing and notarizing g to ensure that your document is legally-binding in BC.
- Fill-in-the-blank power of attorney forms - These forms are typically a good free or low cost option. They are typically cookie-cutter and only account for one option of how your document can be created. If you decide to use a form, it’s important to make sure it meets your wishes and is in compliance with BC regulation.
- Visiting a lawyer - If you have complex wishes or require legal advice, you may want to consider visiting a lawyer for your POA documents.. A lawyer can walk you through any complexities to build a document that best meets your personal needs. However, a customized POA from a lawyer can be expensive.
Do I need a lawyer to make a legal power of attorney or representation agreement in BC?
You do not need a lawyer to draft your enduring power of attorney or representation agreement in BC. However, there are some criteria you need to meet in order for it to be legal. In BC this includes:
- The document must be printed and stored as a physical document (It must be printed and cannot be stored online)
- You must be of sound mind and over the age of majority in your province
- You must sign your document in the presence of two valid witnesses and they must sign to confirm they have witnessed your signature.
- The signatures must be in wet ink and at the very end of the document (You cannot digitally sign and witness your estate planning documents at this time).
What are the duties of a power of attorney or representativein BC?
In BC, your enduring power of attorney can exercise authority in relation to property and finances that you could do, if you were competent. This includes things like paying bills, collecting debt, applying for benefits, or selling your assets. The only thing your power of attorney cannot do, is make your will.
The person you’ve chosen as your representative in your representation agreement can make decisions related to your health care, nutrition, shelter, clothing, hygiene and safety. They are also responsible for communicating your medical wishes, such as pain relief and life support, to doctors and medical professionals.
Other common questions about power of attorney in BC
How much does a power of attorney cost in BC?
With Willful, you can make your legal power of attorney and representation agreement along with your last will and testament for as low as $189. Families can also save an additional 13% by purchasing 2+ plans together.
Is there a standard power of attorney form in BC? Where can I get one?
There is no standard form for power of attorney in British Columbia that you are required to use. Regardless how you choose to create your power of attorney documents, they are legal as long as you meet the requirement in BC. There is also no requirement for your POA to be registered.
The BC Ministry of Attorney General provides simple resources for powers of attorney. However, they recognize that everyone’s needs may be different than the resources available.
Who can I make my attorney or representative?
Your attorney and representative should be someone who has good judgment and someone you trust. The person you’ve chosen must be over the age of majority, which is 19 in BC. Many people will choose a spouse, family member, close friend or a trust company. Choosing a POA is an important decision, as they’re required to act honestly, in good faith and in your best interests.
Your power of attorney should be someone that you trust to make decisions on your behalf regarding legal matters, financial affairs, and your health care. When you choose this person, make sure to talk about what your current wishes and how you want your affairs handled.
A person cannot act as attorney for personal care if they (1) provide health care to grantor for compensation; or (2) provides residential, social, training or support services to the grantor for compensation unless they are the grantor’s spouse/partner/relative. You can learn more about these requirements in Section 18 of the BC Power of Attorney Act
If you have no relatives or friends capable and willing to act as your attorney, you can appoint a trust company or professional.
Who can witness my power of attorney documents?
Under BC legislation, your power of attorney and representation agreement documents need to be signed and witnessed in order to be legally-valid. The law requires that two people witness your signature. The witnesses must be present at the same time, and sign the last page with you together.
In BC, following people are not valid witnesses for your power of attorney documents:
- Anyone under the age of majority in their province or territory
- A spouse, common-law partner, child or someone you treat as your child
- Your attorney, or your attorney’s spouse or common law partner
- Anyone who has a “Guardian of Property” appointed for them by a court because they are not able to manage their property due to medical reasons
- Anyone who has a “Guardian of the Person” appointed for them by a court because mentally they are not able to make personal care decisions
- Anyone whose property is under your guardianship
- Anyone who has a child of yours under their guardianship
Every Willful power of attorney comes with full instructions, localized to BC, on how to ensure you’ve properly signed and witnessed your documents.
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The bottom line
A power of attorney is a legal document that enables someone to act as your representative and make decisions on your behalf in the province of British Columbia. One of the best methods to safeguard your wealth, health, and decision-making is to create a power of attorney.
✍️ Now that you know the difference between the two types of POAs in BC, see how easy it is to make one! Get started here →
