- An attorney may make gifts, loans and charitable gifts if the enduring power of attorney permits them.
- If the document is silent, three conditions must all be met, including a yearly cap of the lesser of 10% of the prior year's taxable income and $5 000.
- An attorney cannot make a will, and cannot be paid unless the document expressly authorizes payment and sets the amount or rate.
If you are acting for a parent under an enduring power of attorney, family members may ask you for money. A grandchild needs tuition, a sibling wants a loan, or your parent always gave to a charity and you want to keep that going. You may also wonder whether you can pay yourself for the work.
In British Columbia, the Power of Attorney Act and its regulation answer these questions. The answers depend on what the document says and on a set of limits that apply either way. This article explains how they generally work.
This article covers the law of British Columbia.
When the document allows gifts, loans and charitable gifts
An attorney may make a gift, a loan or a charitable gift from the adult's property if the enduring power of attorney permits it. The first place to look is the document itself. Read it closely for wording about gifts, loans or donations, and for any conditions or amounts.
Even when gifts are permitted, you are still bound by your general duties. You must act honestly and in good faith, use the care of a reasonably prudent person, and act in the adult's best interests, taking into account their current wishes, known beliefs and values, and any directions in the document.
When the document is silent: three conditions and a yearly cap
If the document does not permit gifts or loans, an attorney may still make them, but only if all three conditions are 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 they were capable.
- The total for the year is no more than the prescribed value.
The prescribed value is a cap. All gifts, loans and charitable gifts in a year cannot total more than the lesser of 10% of the adult's taxable income for the previous year and $5 000. In practice, whichever of those two amounts is smaller is the limit for that year.
A first-ever gift to a grandchild, or a large loan to a sibling, is unlikely to fit these conditions if the adult never made similar gifts. Ask a lawyer before going ahead.
Paying yourself and being reimbursed
Acting as attorney is not paid work by default. An attorney must not be paid unless the enduring power of attorney expressly authorizes payment and sets the amount or rate.
Expenses are different. An attorney may be reimbursed from the adult's property for reasonable expenses properly incurred while acting as attorney. Keep receipts for anything you claim.
Limits that apply alongside the gift rules
| Subject | What the rule says |
|---|---|
| Wills | An attorney must not make or change a will for the adult; any such will or change has no force or effect. |
| Beneficiary designations | A change to a designation made outside a will needs BC Supreme Court authorization. Exceptions: a renewal or replacement of a similar instrument the adult made while capable, naming the same beneficiary, or a new instrument naming the adult's estate. |
| Specific gifts in the will | An attorney must not dispose of property the attorney knows is the subject of a specific gift in the adult's will. |
| Keeping property separate | The adult's property must be kept separate from yours, except property you own jointly with the adult, unless the document says otherwise. |
| Records | You must list the adult's property and liabilities, keep accounts of what you do, and keep invoices, bank statements and other records. |
Good records are your best protection. They show what you gave, lent or spent, and why.
What can happen if gifts go too far
Anyone with reason to believe an attorney is abusing or neglecting the adult, or is failing to follow 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. Someone who reports is protected from an action for damages unless they acted falsely and maliciously.
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, among other orders. An attorney who is unsure about the scope of their powers can apply to the court for directions.
An improper act can still bind the adult toward people who do not know, and have no reason to believe, that it is improper. That means a completed transaction may not simply be undone, and the attorney may have to answer for it.
What to do next
- Reread the enduring power of attorney for wording on gifts, loans, donations and payment.
- Check the adult's past giving habits and last year's taxable income before any gift.
- Keep gifts and loans well within the cap and the adult's care needs.
- Keep all receipts, bank statements and a running account.
- Do not make or change a will for the adult, and do not change a beneficiary designation without BC Supreme Court authorization or a clear exception.
- If a request is unclear or large, ask a lawyer, or ask the court for directions.
Frequently asked questions
Can I give my parent's money to my children if I am their attorney?
Only if the document permits gifts, or if all three statutory conditions are met, including the yearly cap. If your parent never made gifts like this while capable, the conditions are unlikely to be met. Get advice first.
Can I pay myself for being attorney?
Not unless the enduring power of attorney expressly authorizes payment and sets the amount or rate. You can be reimbursed for reasonable expenses properly incurred.
Can I change the beneficiary on my parent's plan?
Generally only with BC Supreme Court authorization. Exceptions cover a renewal or replacement of a similar instrument the adult made while capable, naming the same beneficiary, or a new instrument naming the adult's estate.
Can I update my parent's will as their attorney?
No. An attorney must not make or change a will, and any will or change made that way has no force or effect.
Sources
- Power of Attorney Act, s. 21 — bclaws.gov.bc.ca
- Power of Attorney Regulation, B.C. Reg. 20/2011, s. 2 — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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