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Learning about power of attorney

29 December 2013

“I gave my daughter power of attorney a few years ago. Do I need to do a new one because the law changed last fall?”

Good question. On September 1, 2011, the enduring power of attorney laws did change significantly in BC. However, your existing document should still be valid, as existing powers of attorney were grandfathered (grandparented?) under the the new provisions of the Power of Attorney Act.

The law still permits you to authorize an attorney to make decisions for you, and do certain things, even while you are incapable (that’s the ‘enduring’ part).

What has changed is the signing requirements and, that when your daughter acts as your attorney, she will be governed by the new law, and will have different powers and limitations. If you do not want those particular changes then you may have to revoke your power of attorney and make a new one on different terms.

For example, under the new law, your attorney may make gifts, loans and charitable gifts that you would have made, but only up to a maximum of $5,000, and only if you will have sufficient property left over to meet your needs (and anyone you are supporting). If you want your attorney to be able to make more generous gifts — to your children, grandchildren, favourite charities or anyone else — then you will have to spell that out in your power of attorney.

Under the new law, from the time your daughter first acts as your attorney, she must keep an ongoing list of all your assets and liabilities, including an estimate of their value. She will also have to keep track of every receipt and disbursement. The duty to account is no different, but it’s now set out in the legislation. And the duty begins when your daughter first acts, even if you are still capable. (So if you are out of town and your daughter helpfully uses your power of attorney to renew your house insurance, she may now be obliged to keep a list all of your property and accounts.)

Your daughter will not be paid for her duties as attorney, unless your power of attorney sets out the rate or amount of compensation. If the document is silent on this, she can’t be paid from your money. Many of our clients will want the attorney to receive some modest compensation.

The new law has other changes you should discuss with your lawyer. Many of the changes are aimed at permitting attorneys to better manage the assets of adults who trust them as attorneys to look after their financial affairs. Other changes are aimed at protecting those adults in our society who, particularly as they age, may be vulnerable to financial abuse.

Mary Hamilton is associate counsel with Davis LLP and leads the firm’s Wills, Estates and Trusts group. She has almost 25 years experience in matters relating to wills, trusts and estate administration, and was named Vancouver Trusts and Estates Lawyer of the Year 2011 by Best Lawyers.

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