Attorney Duties and Record-Keeping Under a BC Power of Attorney

Being named as someone's attorney carries real legal responsibility. You are managing another person's money, and British Columbia law sets out how you must do it.

This article walks through the main duties, the limits on payment and gifts, and the records you are required to keep.

This article covers the law of British Columbia.

Core duties

An attorney 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.

The attorney 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. Where reasonable, the attorney must put the adult's personal care and health care needs first and foster the adult's independence.

• Invest the adult's property under the Trustee Act unless the document says otherwise.
• Generally do not delegate your decision-making. You may delegate investment functions to a suitably qualified person as the applicable statute allows.
• Do not make or change a will for the adult. Any such will has no force or effect.
• Do not dispose of property you know is the subject of a specific gift in the adult's will.

Before you act, you must also sign the enduring power of attorney in front of 2 witnesses. If two or more attorneys are named, they must act unanimously unless the document says otherwise. When your authority begins depends on the document. It takes effect on the latest of when the adult and an attorney have signed it, any effective date it states, or when a triggering event it names, such as incapacity, has been confirmed. If it starts only on an event such as incapacity, the document must say how the event is to be confirmed and by whom, for example by a named doctor's letter.

Keeping property separate

An attorney must keep the adult's property separate from their own. This does not apply to property the adult and attorney own jointly, as joint tenants or otherwise, unless the power of attorney says it does. In practice, this means a separate account in the adult's name rather than mixing funds with yours.

Records you must keep

The regulation requires the attorney to make a reasonable effort to find out the adult's property and liabilities and keep a list of them. You must keep a current list with value estimates where reasonable, keep accounts and records of what you do as attorney, and keep all invoices, bank statements and other records needed for full accounts.

• A list of the adult's property and liabilities
• A current list with estimated values, where reasonable
• A running record of every transaction you make as attorney
• All invoices, bank statements and other supporting records

An attorney may ask for information and records about the adult that relate to the adult's incapacity or the attorney's authority. An attorney must not disclose information obtained as attorney except as needed for their duties, a report to the Public Guardian and Trustee, or court proceedings. Banks and other institutions may have their own requirements, and these vary, so if one hesitates it helps to ask which requirements are not yet met.

Payment, expenses, gifts and loans

An attorney must not be paid for acting unless the document expressly authorizes payment and sets the amount or rate. You may be reimbursed from the adult's property for reasonable expenses properly incurred while acting.

Gifts, loans and charitable gifts are allowed if the document permits them. If it does not, all three conditions must be met: the adult will still have enough property for personal care and health care needs, the adult made gifts or loans of that kind when capable, and the yearly total stays within the prescribed value. That cap is the lesser of 10% of the adult's taxable income for the previous year and $5 000.

What to do next

• Read the document to see what it allows, including payment, gifts and when it starts.
• Open or confirm a separate account for the adult's money.
• Begin your list of property and liabilities and keep every receipt.
• If you are unsure of your powers, you may apply to court for directions.
• If you can no longer continue, you may resign by giving written notice to the adult and any other named attorneys. If the adult is incapable, notice must also go to a spouse, near relative or known close friend.

Anyone who believes an attorney is abusing or neglecting the adult, or failing to follow the document or their duties, may report it to the Public Guardian and Trustee. The Public Guardian and Trustee, or a person who reported, may apply to the BC Supreme Court, which can terminate all or part of the enduring power of attorney. The court must consider the adult's wishes, beliefs and values, and may order against them only if the adult is incapable and the order is in their best interests. Good records are your best protection.

Your authority ends in the situations the Act lists, including if you resign, become incapable or die, or go bankrupt. If you are the adult's spouse, it also ends when the marriage or marriage-like relationship ends, unless the document provides otherwise. The enduring power of attorney itself terminates when the adult dies. After that, the executor named in the will carries out its instructions. Acts done before your authority ended stay valid, and if an attorney acts improperly, the act still binds the adult toward people who do not know, and have no reason to believe, that it is improper.

Frequently asked questions