Our lawyers can help you with complex estate arrangements including the establishment of power of attorney agreements, committeeship and representation agreements. These agreements protect your interests when you may not be able to represent yourself.
Our lawyers are ready to help you establish enduring power of attorney in British Columbia. Our Surrey-based lawyers can meet you for a private consultation to discuss any arrangement or agreement. Begin booking your consultation using our form, here.
The term “Power of Attorney” refers to a legal document that allows a person (the “Attorney”) to lawfully handle the financial and legal affairs of another adult. The range of powers and duties of Attorneys can be very specific (e.g. cashing old age security pensions, selling a certain piece of real property) to the general (e.g. managing an individual’s finances). Powers of Attorney are regulated by the new Power of Attorney Act that came into effect in September 2011.
In all cases, the person that is given enduring power of attorney in BC should be trustworthy and have good judgment. Most often, it is a trusted family member who is appointed. However, an individual is able to appoint a trust company or other professional individual to take on that role. An individual is prohibited from appointing anyone who receives money in exchange for providing them with health care or who is employed at a facility through which the individual receives health care (with some exceptions for certain family members).
Like a Committee, an Attorney owes a fiduciary duty to the individual on whose behalf they are acting. All of the duties required of an Attorney can be found in the Power of Attorney Act, but generally an Attorney is required to act in the best interest of the adult who appointed them, not to dispose of any property that the attorney knows is gifted in the adult’s Will, and to keep proper records of the adult’s assets and liabilities.
The term “Committee” refers to a person– appointed by the BC Supreme Court – who is tasked with making personal, medical, legal, or financial decisions for an individual who is deemed mentally incapable of making these decisions themselves. Often these individuals have difficulty paying their bills, keeping track of their bank accounts, and making rational decisions about their personal care and health care.
The decision to apply to be appointed as a Committee should not be taken lightly. Appointing a Committee is a serious legal step as it effectively takes away an individual’s right to make their own decisions in regard to their well-being. Appointing a Committee is a course of action that should only be taken when all other options have been explored and exhausted.
Aside from a few exceptions such as voting on an individual’s behalf or preparing a Will for an individual under their care, Committees are given the power to make any decision that an individual would normally make for themselves in relation to their financial and legal affairs and their personal care and health care. It is possible for the Court to restrict the powers of a Committee. Some restrictions that are often imposed upon a Committee include: restrictions on the sale of real estate and access to capital.
A Committee must always act in the best interest of the individual placed in their care and is required to pursue the interests of the individual over their own interests. In law, this is called a fiduciary duty. The specific tasks that a committee is required to perform may include:
A Committee is responsible for keeping comprehensive records of an individual’s assets, liabilities, and income earned from their estate. These records are then presented to the individual’s Case Manager at the Office of the Public Guardian and Trustee for review. The Office of the Public Guardian and Trustee reviews the actions of all private Committees, typically on a yearly basis, and is also responsible for investigating reports of abuse by a Committee.
In the province of BC, Representation Agreements such as Advance Directives and Substitute Decision-Making Agreements (sometimes referred to as Living Wills), would essentially serve the same purpose as a Living Will. The only difference is that these types of agreements are legally recognized, where Living Wills are not.
Representation Agreements are agreements made between an adult and their representative to make decisions related to the adult’s personal care and health care, if a medical doctor has stated in writing that the adult is no longer capable of making rational decisions related to same.
There are different forms of Representation Agreements which can include the ability to make restricted financial decisions. The Representation Agreements we prepare are Section 9 Representation Agreements which deal only with personal care and health care decisions. Representation Agreements are governed by the Representation Agreement Act which was revised in September 2011.
Contact McQuarrie for Assistance Establishing Power of Attorney in BC
Our lawyers are prepared to help you with all estate arrangements. Please schedule a consultation using our form, here, to speak to a lawyer and have all of your questions answered.
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