Can an Attorney Be Removed Under a BC Power of Attorney?

If you are worried about how an attorney is handling a relative's money, or you are an attorney yourself and wonder whether you could be removed, it helps to know the options. In British Columbia they range from the adult's own choice to a court application.

This article explains the main ways an attorney's authority ends, and what steps are available if you have concerns.

This article covers the law of British Columbia.

The adult can change or revoke the document

An adult who still has capacity may change or revoke their enduring power of attorney and must give written notice to each attorney. Capacity is presumed until the contrary is shown.

Once the adult is incapable, this option is no longer available, which is why other routes matter.

When authority ends automatically

An attorney's authority ends automatically in several situations.

• The document is terminated or the provisions giving the attorney authority are revoked.
• The attorney resigns.
• The attorney becomes incapable or dies.
• The attorney goes bankrupt.
• A corporate attorney dissolves.
• The attorney is convicted of a prescribed offence or an offence in which the adult was the victim.

If the attorney is the adult's spouse, their authority ends when the marriage or marriage-like relationship ends, unless the document provides otherwise.

The enduring power of attorney itself also terminates when the adult dies, under its own terms, by court order, or on revocation. After a death, the executor named in the will carries out its instructions.

A court committeeship can also affect the document. 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 statutory or certificate route instead, the enduring power of attorney is suspended and the Public Guardian and Trustee decides whether to terminate it.

Resignation

An attorney may resign by giving written notice to the adult and any other named attorneys. If the adult is incapable, notice must also go to a spouse, near relative or known close friend of the adult.

Reporting concerns and court applications

Anyone may report to the Public Guardian and Trustee if they have reason to believe an attorney is abusing or neglecting the adult, is incapable of acting, or is failing to follow the document or the attorney's duties. The Public Guardian and Trustee must promptly review a report and may investigate. No action for damages lies against a person who reports, 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. The court must consider the adult's wishes, beliefs and values.

If you have information that an adult is abused or neglected and cannot seek help, you can also report to a designated agency, such as a regional health authority or Community Living BC. Abuse includes deliberate mistreatment that causes financial harm. Your identity is protected, and no action for damages lies for the report unless it was false and malicious. If the agency has reason to believe a crime was committed against the adult, it must report to police.

An attorney who is unsure about the scope of their powers or duties may apply to the court for directions.

What an attorney is expected to do

Knowing the attorney's duties helps you judge whether something has gone wrong. 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.

• Act in the adult's best interests, taking into account the adult's current wishes, known beliefs and values, and any directions in the document.
• Keep the adult's property separate from their own. This does not apply to property they own jointly unless the document says it does.
• Invest the adult's property under the Trustee Act unless the document says otherwise.
• Keep a list of the adult's property and liabilities, accounts of what they do, and the invoices and bank statements needed for full accounts.
• Not make or change a will for the adult.
• Not be paid unless the document expressly authorizes payment and sets the amount or rate, though reasonable expenses properly incurred may be reimbursed.

Generally, an attorney cannot delegate their decision-making authority, although investment functions may be delegated as the applicable statute allows.

Acts done before an attorney's authority ends stay valid. If an attorney acts improperly, the act still binds the adult toward people who do not know, and have no reason to believe, that it is improper.

What to do next

• Write down what concerns you, with dates and amounts where you can.
• Remember an attorney must keep accounts and records, and must keep the adult's property separate from their own in most cases.
• Check whether the document allows payment or gifts, since an attorney generally cannot be paid unless the document says so.
• Consider a report to the Public Guardian and Trustee.
• Speak with a lawyer about a court application if the concern is serious.

Frequently asked questions