Parent Lost Capacity With No Power of Attorney: Options in BC

When a parent can no longer manage money and never signed an enduring power of attorney, family members often feel stuck. A power of attorney can only be made by someone who still understands what it does, so it is usually too late to sign one now.

British Columbia has other routes. This article outlines them in plain language so you can see which questions to raise with a lawyer.

This article covers the law of British Columbia.

Why you cannot simply sign one now

An adult may make an enduring power of attorney unless they cannot understand its nature and consequences, and capacity is presumed until the contrary is shown. The adult must understand specific points, such as what property they have, that the attorney can do anything with their finances except make a will, and that they can revoke the power.

The test is about understanding, not a diagnosis, so a person with early dementia who still understands these points can sign. If your parent does understand them, a lawyer can help. If they do not, you will need another route.

If your parent can still sign, only adults, meaning people aged 19 or older, can make an enduring power of attorney. It must be in writing, signed and dated by the adult in front of 2 witnesses, and both witnesses must sign in front of the adult. Only one witness is needed if that witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia.

Route one: court-appointed committee

If a person has named no one and becomes incapable, the BC Supreme Court may appoint a committee, which is a guardian for an adult, to make decisions for them.

The court may declare a person incapable after reading affidavits from 2 medical practitioners, and may appoint any person as committee. Notice of the application must be served on the Public Guardian and Trustee at least 10 days beforehand.

A committee of estate has all the rights and powers over the estate that the patient would have if fully capable. Committees other than the Public Guardian and Trustee must pass their accounts before the Public Guardian and Trustee.

Route two: certificate of incapability

A health authority designate may issue a certificate of incapability. The Public Guardian and Trustee then becomes the adult's statutory property guardian from the date the certificate is signed.

This means a public body, rather than a family member, manages the finances. Whether this route or a court application suits your family depends on the facts, and a lawyer can help you compare them.

Court guardianship rules in BC have been changing in stages, so how this applies depends on your situation, and it is worth confirming the current rules with a lawyer.

What if a power of attorney does exist

Check carefully before assuming there is none. A document made outside BC may be deemed an enduring power of attorney in BC if it continues on incapacity and meets the prescribed requirements, including a certificate from a solicitor. An older document validly made before the former s. 8 was repealed on September 1, 2011 is deemed made under Part 2.

Also note the effect of a court order: when a court declares a person a patient, every power of attorney they gave is terminated. If the Public Guardian and Trustee becomes guardian by the certificate route instead, an enduring power of attorney is suspended, and the Public Guardian and Trustee decides whether to terminate it.

What to do next

• Search for any existing power of attorney, including documents made outside BC or before 2011.
• Collect a list of your parent's assets, income and bills.
• Ask your parent's doctor what assessment is possible.
• Check whether a representation agreement or advance directive exists for personal and health care, which are separate from finances.
• Talk to a lawyer about which route fits your family.

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

A representation agreement covers personal care and health care, and a standard s. 7 agreement can also cover routine management of financial affairs and legal services. An advance directive is a capable adult's written instruction giving or refusing consent to health care, and it is separate from an enduring power of attorney.

Frequently asked questions