Making a Power of Attorney After a Dementia Diagnosis in BC

A dementia diagnosis is frightening, and families often worry that it is already too late to put a power of attorney in place. In British Columbia, the answer depends on what the person understands at the time of signing, not on the diagnosis itself.

This article explains how capacity is tested, what the person needs to understand, and what can happen if the window has closed.

This article covers the law of British Columbia.

A diagnosis alone does not bar signing

An adult may make an enduring power of attorney unless they cannot understand its nature and consequences. Capacity is presumed until the contrary is shown.

Only an adult, meaning someone aged 19 or older, can make an enduring power of attorney. An ordinary power of attorney ends if the person becomes mentally incapable, while an enduring one keeps working after that point.

The Act sets this test, not a diagnosis, so a person with early dementia who still understands the required points can sign. Capacity can also depend on the specific decision and the moment of signing, so it can be worth acting while the person is at their clearest.

What the person must understand

Under the Power of Attorney Act, the adult must understand six things:

• What property they have and roughly what it is worth.
• Their obligations to dependants.
• That the attorney can do anything with their financial affairs except make a will.
• That their property may lose value unless the attorney manages it prudently.
• That the attorney might misuse the authority.
• That they can revoke the power while capable.

Signing it properly

The document must be in writing, signed and dated by the adult in front of 2 witnesses, or one witness who is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia. The attorney cannot be a witness, nor can the attorney's spouse, child or parent.

Several special cases can change who may witness or how signing works:

• The ban on an attorney's employee or agent witnessing does not apply where the named attorney is a lawyer, a notary, the Public Guardian and Trustee, or a financial institution authorized under the Financial Institutions Act.
• A person who does not understand the adult's way of communicating may still witness if interpretive help is provided.
• If the adult is physically unable to sign, someone else may sign if the adult is present and directs the signing, but that person cannot be a witness.
• If the document will be used for Land Title Act purposes, it must also be executed and witnessed as that Act requires.
• The regulation allows signing by audiovisual communication, but the witness must be a lawyer or a BC notary in good standing and the document must state that it was signed under the alternative process.

The attorney must also sign in front of 2 witnesses before acting. An individual may be attorney unless they provide personal care or health care services to the adult for pay, or are an employee of the facility where the adult lives, but a child, parent or spouse of the adult may still be named even in those roles. If two or more attorneys are named, they must act unanimously unless the document says otherwise.

To be enduring, the document must say whether the attorney may act while the adult is still capable or only once the adult is incapable, and that the attorney's authority continues even though the adult is incapable. If it takes effect only on an event such as incapacity, it must say how and by whom that event is confirmed. These points are easy to get wrong, so a lawyer or notary can help draft it.

The standard government forms are optional. Note that an enduring power of attorney covers financial affairs, while personal care and health care decisions are made through representation agreements and advance directives.

If the window has closed

If a person has named no one and becomes incapable, the BC Supreme Court may appoint a committee to make decisions for them. The court may declare a person incapable after reading affidavits from 2 medical practitioners, and notice 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.

There is also a certificate route: a health authority designate may issue a certificate of incapability, and the Public Guardian and Trustee then becomes the adult's statutory property guardian. If a court appoints a committee, every power of attorney the person gave is terminated. If the Public Guardian and Trustee becomes guardian by the certificate route instead, the enduring power of attorney is suspended, and the Public Guardian and Trustee decides whether to terminate it. Because these rules have been changing, confirm what is currently in force with a lawyer.

What to do next

• Act soon, while the person can still follow the six points above.
• Talk to a lawyer or notary about how capacity will be judged and documented.
• Choose an attorney who is eligible and trustworthy.
• Gather a list of the person's property and obligations.
• Arrange proper witnessing.
• Ask about a representation agreement and advance directive for health and personal care.

Frequently asked questions