Attorney Duties and Record-Keeping Rules in British Columbia

Being named as an attorney under an enduring power of attorney carries real legal responsibility. You are managing someone else's money and are expected to do it carefully.

This article sets out the main duties in British Columbia's Power of Attorney Act and its regulation. It is general information, and a lawyer can confirm how it applies to your document.

This article covers the law of British Columbia.

Before you start and your core duties

The attorney must sign the enduring power of attorney in front of 2 witnesses before acting under it. Check when the document takes effect. It may start right away, or only once an event such as incapacity has been confirmed. If more than one attorney is named, they must act unanimously unless the document says otherwise.

• Act honestly and in good faith.
• Use the care, diligence and skill of a reasonably prudent person.
• Act within the authority the document gives you.
• Keep the prescribed records.
• Act in the adult's best interests, taking into account their current wishes, known beliefs and values, and any directions in the document.

Where reasonable, you must also put the adult's personal care and health care needs first and foster their independence.

Keeping property separate and investing it

You must keep the adult's property separate from your own. The exception is property you and the adult own jointly, which is not covered by this rule unless the document says it is.

You must invest the adult's property under the Trustee Act unless the document says otherwise. Generally you cannot hand your decision-making to someone else, though investment functions may be delegated to a qualified professional as the applicable statute allows.

The records you must keep

The Power of Attorney Regulation sets out what records an attorney must keep:

• A list of the adult's property and liabilities, after a reasonable effort to find them.
• A current list with value estimates, where reasonable.
• Accounts and records of what you do as attorney.
• All invoices, bank statements and other records needed for full accounts.

You may ask for information and records about the adult that relate to their incapacity or your authority. You must not disclose information you obtain as attorney except as needed for your duties, a report to the Public Guardian and Trustee, or court proceedings.

Payment, gifts and things you cannot do

You must not be paid for acting as attorney 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 as attorney.

Gifts, loans and charitable gifts from the adult's property are allowed if the document permits them. If it does not, three conditions must all be met: the adult will still have enough property for their 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. In that case, the yearly total cannot be more than the lesser of 10% of the adult's taxable income for the previous year and $5 000.

• You cannot make or change a will for the adult. Any will or change you make has no force or effect.
• You can change a beneficiary designation the adult made only if the BC Supreme Court authorizes it. There are exceptions: a new designation that renews or replaces a similar one the adult made while capable and names the same beneficiary, or a new instrument that names the adult's estate.
• You must not dispose of property you know is the subject of a specific gift in the adult's will, and where reasonable you must keep the adult's personal effects available to them.

When your authority ends and what happens if something goes wrong

Your authority ends automatically in several situations, including if you resign, become incapable or die, go bankrupt, or the document is terminated or revoked. 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.

Anyone who has reason to believe an attorney is abusing or neglecting the adult, or failing to follow the document or an attorney's duties, may report to the Public Guardian and Trustee. The Public Guardian and Trustee must promptly review a report and may investigate. It, or a person who reported, may apply to the BC Supreme Court, which may terminate all or part of the enduring power of attorney.

What to do next

Good habits protect you. An attorney can apply to the BC Supreme Court for directions on the scope of their powers and duties. If you decide to step down, you may resign by written notice to the adult and any other attorneys, and if the adult is incapable, notice must also go to a spouse, near relative or known close friend.

• Read the document and note its effective date and any limits.
• Open records from day one and save every statement and receipt.
• Keep a separate account for the adult's money.
• Ask a lawyer or accountant if you are unsure about a decision.

Frequently asked questions