Amendments to the Power of Attorney Act

On September 1, 2011, the Adult Guardianship and Planning Statutes Amendment Act, 2007 came into effect, amending several different guardianship and estate planning statues, and in particular, the Power of Attorney Act of B.C.

Power of Attorney Act (the “POA Act”)

The amendments to the POA Act impose new and specific duties on people acting as enduring powers of attorney and also expands the powers of the attorneys. These amendments help to clarify the scope of the attorney’s responsibilities, but also create some new responsibilities and challenges for attorneys.

In general, the amendments confirm that an attorney must act honestly and in good faith, must exercise the care, diligence and skill of a reasonably prudent person and must act within the authority given in the enduring power of attorney document.

DUTIES OF AN ATTORNEY: below are some highlights in regards to the new duties of an attorney acting under an enduring power of attorney:

Duty to act in the best interest of the Adults – the attorney must make efforts to determine the adult’s wishes, beliefs and values, while the adult is still capable.

Duty to Keep Records – The attorney must keep detailed records of the adult’s assets, liabilities, invoices, bank statements, and other statements to be able to produce a full accounting of income and disbursements.

Duty to give priority to the adult’s personal care – Although the attorney does not have the authority to make health care decisions on behalf of the adult, the attorney, when managing with adult’s financial and legal affairs, must give priority to ensuring the that the adult’s personal and health care needs are addressed from a financial perspective. Further, to the extent possible, the attorney must keep the adult’s personal effects at the disposal of the adult.

Duty to maintain property gifted in the Will of the Adult – An attorney is under an obligation not to dispose of an adult’s property that is known to be subject to a testamentary gift in the adult’s Will, unless the disposition is necessary for the attorney to be able to carrying out his/her other statutory obligations. Accordingly, it will be necessary for the attorney to familiarize him/herself with the Last Will & Testament of the adult.

POWERS OF AN ATTORNEY

Power to make a gift or a loan

Power to make beneficiary designations

CONCLUSION

Any person currently acting as enduring power of attorney or is appointed after September 1, 2011 to act as an enduring power of attorney, must pay careful attention to these changes and to make sure they understand their new statutory duties, powers and responsibilities in acting as attorneys.
We encourage anyone with any question about these new changes, duties and powers to contact Bell Alliance Lawyers at 604.873.8723