Appointing a trusted family member or a friend as power of attorney is something that should be considered with care and with the help of a lawyer. Read on to find out what it is exactly, how it works and what can happen if you don’t have one.
What is a power of attorney?
A power of attorney is a legal document that gives another person the power to take care of someone’s financial and legal matters. The person you give this power to is called the “attorney”. (N.B. “attorney” does not mean lawyer). Generally, a power of attorney is effective when it is signed by the persons and the attorney. However, it can also be triggered to become effective if certain events occur.
How is it granted?
A capable adult may appoint a spouse, family member, trust company or other trusted persons as their attorney as long as they are 19 years of age and are capable. It is very important that careful consideration is given to who is appointed the attorney as they will have significant powers over financial and legal affairs and bear significant responsibility.
How would granting someone power of attorney be useful or beneficial to a SCI patient and/or client?
A power of attorney is beneficial if an illness or injury makes it difficult for the adult to handle their own financial and legal affairs. Having a trusted person in this role helps provide clarity in terms of finances, health matters and personal care. Lawyers specializing in estate planning can provide assistance in guiding you through your choices.
What are the two types of power of attorney?
Regular Power of Attorney: terminates when the adult become mentally incompetent or passes away. Therefore, people often make an enduring power of attorney instead, as a form of advance planning to ensure that a family member or other person of their choice is legally able to manage their financial and personal affairs should they become mentally incapable.
Enduring Power of Attorney: continues to be in effect, or endures, if the adult becomes mentally incompetent. It may also be appropriate to make a “representation agreement” to authorize other people to make decisions regarding the adult’s personal and health care when planning for incapacity. Enduring powers of attorney are the primary tools for personal planning regarding finances, property and legal affairs. They are not for health matters or personal care.
Why do I need a representation agreements?
Representation agreements are beneficial for personal planning regarding health care and personal care matters. They can also cover some limited financial and legal matters.
What happens if there is no enduring power of attorney and no representation agreements?
If personal planning has not been done, particularly if there is no enduring power of attorney or representation agreement in place, the affairs of a person who becomes mentally incapable may need to be handled by a committee appointed under the Patients Property Act, R.S.B.C. 1996, c.349 or by the Public Guardian and Trustee under the Patients Property Act and the Adult Guardianship Act, R.S.B.C. 1996, c.6. This will require someone such as a family member to apply to the Court to be appointed as a committee of the adult’s estate (to handle the adult’s financial and legal affairs) or as a committee of the person (to handle the adult’s health and personal care matters).
Enduring powers of attorney and representation agreements allow adults to make their own arrangements in the event of incapacity and are less costly and time-consuming than an application to the Court for a committee made after an adult becomes incapable. An application for a committee is not an effective way to respond to immediate needs or emergency situations due to the time it takes.
We recommend that you find a lawyer who specializes in estate planning to discuss your specific needs.
If you’d like to learn more about power of attorney, please contact Slater Vecchio LLP for more information.
Note: This content is sponsored by Slater Vecchio LLP. The information provided is general and does not necessarily reflect the views of Spinal Cord Injury BC. You should always seek legal advice specific to your own situation.
