- An attorney may make gifts, loans or 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 previous year's taxable income and $5 000.
- Attorneys must keep records and act in the adult's best interests, and suspected misuse can be reported to the Public Guardian and Trustee.
An enduring power of attorney lets someone you trust manage your financial affairs if you can no longer do so. Families often ask whether that person can give money to relatives, lend funds, or keep up charitable giving from the adult's property.
The answer depends on what the document says and on limits set by British Columbia's Power of Attorney Act. This article explains those limits in plain terms. It is general information, and a lawyer can confirm how it applies to your situation.
This article covers the law of British Columbia.
When the document allows gifts and loans
An attorney may make a gift, loan or charitable gift from the adult's property if the enduring power of attorney permits it. In that case the terms of the document are what matter, so read the wording closely.
An adult can give an attorney general powers or only specific ones. Gifting authority, if the adult wants it, should therefore be spelled out clearly rather than assumed.
When the document says nothing about gifts
If the document does not permit gifts, loans or charitable gifts, the attorney can make them 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 capable.
- The total for the year is no more than the prescribed value.
The prescribed cap is the lesser of 10% of the adult's taxable income for the previous year and $5 000, counting all gifts, loans and charitable gifts in the year together. A one-off large gift that is out of character for the adult will generally not fit within these conditions.
Related limits on what an attorney can do
| Situation | Rule |
|---|---|
| Paying themselves | No payment unless the document expressly authorizes it and sets the amount or rate. Reasonable expenses properly incurred can be reimbursed. |
| Property left as a specific gift in the will | The attorney must not dispose of property they know is the subject of a specific gift in the will. |
| Making or changing a will | Not allowed, and any will or change has no force or effect. |
| Changing a beneficiary designation | Only with BC Supreme Court authorization. |
There are two exceptions on beneficiary designations. An attorney may make a new designation without a court order if it renews or replaces a similar instrument the adult made while capable and names the same beneficiary. For a new instrument that is not a renewal, the attorney may make a designation only if the beneficiary is the adult's estate.
The attorney's duties: best interests and records
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. They must act in the adult's best interests, considering the adult's current wishes, known beliefs and values, and any directions in the document.
The attorney must also keep the adult's property separate from their own. That rule does not apply to property the adult and attorney own jointly unless the document says it does.
- Make a reasonable effort to find out the adult's property and liabilities and keep a list of them.
- Keep accounts and records of what they do as attorney.
- Keep all invoices, bank statements and other records needed for full accounts.
Suspected misuse and what to do next
Anyone with reason to believe an attorney is abusing or neglecting the adult, or is 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, and 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, and the reporter's identity is protected. Abuse includes deliberate mistreatment that causes financial harm. If the agency believes a criminal offence was committed, it must report the facts to the police.
- Read the enduring power of attorney for any wording on gifts, loans and payment.
- If you are the attorney, keep records of every transaction and the reason for it.
- If a gift seems doubtful, ask a lawyer before going ahead.
- If you suspect misuse, consider a report to the Public Guardian and Trustee or a designated agency.
- An attorney unsure of their powers may apply to the court for directions.
Frequently asked questions
Can an attorney give themselves a gift from the adult's money?
Only if the document permits gifts, or if all three conditions for gifts are met, including the yearly cap. Gifts to the attorney must still serve the adult's best interests, so advice is wise before making one.
Can an attorney be paid for the work?
Not unless the document expressly authorizes payment and sets the amount or rate. The attorney can be reimbursed for reasonable expenses properly incurred while acting.
Can an attorney change the adult's will or insurance beneficiary?
An attorney cannot make or change a will, and any attempt has no effect. Changing a beneficiary designation needs court authorization, apart from renewals or designations naming the estate.
What if a gift was already made improperly?
An improper act can still bind the adult toward people who did not know and had no reason to believe it was improper. 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 document. A lawyer can explain the options.
Sources
- Power of Attorney Act, s. 13(2) — bclaws.gov.bc.ca
- Power of Attorney Regulation, B.C. Reg. 20/2011, s. 2 — bclaws.gov.bc.ca
- Adult Guardianship Act, RSBC 1996, c. 6, s. 46 — 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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