Can an Attorney Change a Will or Beneficiary in BC?

Someone you love has an attorney under an enduring power of attorney, and now you are wondering what that person can do. Perhaps you are a beneficiary worried that a will might be rewritten. Perhaps you are the attorney and want to stay within the rules.

British Columbia's Power of Attorney Act draws firm lines around wills and beneficiary designations. This article explains those lines in plain language. It is general information, not advice on your situation.

This article covers the law of British Columbia.

What an attorney is allowed to manage

An enduring power of attorney lets an adult authorize an attorney to make decisions about their financial affairs, with either general powers or only specific ones. It keeps working even if the adult later becomes mentally incapable.

Personal care and health care decisions are handled differently. They are made through representation agreements and advance directives, not an enduring power of attorney.

A few basics help put the rest of this article in context:

• Only an adult, meaning someone aged 19 or older, can make an enduring power of attorney.
• An adult may make one unless they cannot understand its nature and consequences, and capacity is presumed until the contrary is shown.
• The document can take effect right away or only on an event such as incapacity, depending on what it says.
• If two or more attorneys are named, they must act unanimously unless the document says otherwise.

The rule on wills

An attorney must not make or change a will for the adult. Any will or change that an attorney makes for the adult has no force or effect.

The adult is also expected to understand that the attorney can do anything with their financial affairs except make a will. So if you are a beneficiary, an attorney cannot lawfully rewrite the will to favour themselves or anyone else.

Even if an enduring power of attorney tried to give the attorney a power the law prohibits, that direction would be severed and have no effect.

There is a related limit on property. An attorney must not dispose of property that the attorney knows is the subject of a specific gift in the adult's will.

Beneficiary designations outside a will

Some assets pass by a beneficiary designation in a separate document, rather than through a will. An attorney may change a designation the adult made only if the BC Supreme Court authorizes the change.

There are two exceptions where no court order is needed:

• The new designation renews or replaces a similar instrument the adult made while capable, and it names the same beneficiary.
• The instrument is new and not a renewal, and the beneficiary is the adult's estate.

Whether a particular change fits one of these exceptions depends on the documents involved, so it is worth confirming with a lawyer before acting.

Gifts are a separate topic. An attorney may make a gift, loan or charitable gift from the adult's property if the document permits it. If it does not, the adult must still have enough property for their personal care and health care needs, the adult must have made gifts or loans of that kind when capable, and the yearly total must stay within the prescribed limit. That limit is the lesser of 10% of the adult's taxable income for the previous year and $5 000.

When you suspect something is wrong

Attorneys have duties. They must act honestly and in good faith, use the care, diligence and skill of a reasonably prudent person, act within the authority given, and keep the prescribed records. They must also act in the adult's best interests, taking into account the adult's current wishes, known beliefs and values, and any directions in the document.

Anyone with reason to believe an attorney is abusing or neglecting the adult, or is not following the document or the attorney's duties, may report to the Public Guardian and Trustee. The Public Guardian and Trustee must promptly review a report and may investigate.

The Public Guardian and Trustee, or a person who reported, may apply to the BC Supreme Court. The court may terminate all or part of the enduring power of attorney. A person who reports is protected from damages claims unless they acted falsely and maliciously.

Separately, anyone with information that an adult is abused or neglected and cannot seek help may report to a designated agency, such as a regional health authority or Community Living BC. Under the Adult Guardianship Act, abuse includes deliberate mistreatment that causes financial harm. If the agency has reason to believe a criminal offence was committed against the adult, it must report the facts to the police.

An attorney who is unsure about the scope of their powers or duties may apply to the court for directions.

What to do next

• Get a copy of the enduring power of attorney and read its terms.
• Write down exactly which change you are worried about and when it happened.
• Gather any beneficiary forms, account statements and other documents connected to the change.
• If you are the attorney, do not change a will or a designation without legal advice.
• If you are a worried relative, consider a report to the Public Guardian and Trustee.
• Speak to a lawyer if a court application may be needed.

How these rules apply depends on your situation and on the exact wording of the documents, so it is worth confirming with a lawyer.

Frequently asked questions