Can You Make an Enduring Power of Attorney With Dementia in BC?

A dementia diagnosis is frightening, and families often worry that it is already too late to put legal protection in place. In British Columbia, the answer is less all-or-nothing than many people expect.

This article explains the test for capacity, how people commonly show that the test is met, how the document must be signed, and what the options are if capacity is doubtful or already gone.

This article covers the law of British Columbia.

A diagnosis is not the legal test

An enduring power of attorney lets someone you choose, called your attorney, manage your financial affairs, and it keeps working even if you later become mentally incapable. It does not cover personal care or health care decisions; those are handled through representation agreements and advance directives.

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. The Act sets a test about understanding, not a diagnosis, so a person with early dementia who still understands the required points can sign.

In practice, capacity can vary with the decision and sometimes with the day. What matters is whether the person meets the test at the time the document is signed.

The six things the person must understand

Under the Power of Attorney Act, the adult must understand the following:

• What property they have and roughly what it is worth.
• Their obligations to their 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 they are capable.

Only adults, meaning people aged 19 or older, can make an enduring power of attorney. The person does not need to be able to manage their finances themselves. They need to understand what handing that job to someone else involves.

Showing that capacity was there

Capacity is presumed until the contrary is shown. But when a dementia diagnosis is on record, a challenge by a relative, a bank or another person is more likely, so many families take steps to leave a clear record.

• Ask the person's doctor whether they can comment on the person's understanding of the six points close to the signing date.
• Have the lawyer or notary who prepares the document meet the person alone, ask them about each point in their own words, and keep notes.
• Sign at the person's best time of day, in a calm setting, without family members steering the answers.
• Keep a record of who was present and what was discussed.

None of these steps is a legal requirement in itself. They are practical ways to show that the test was met if the document is questioned later. A lawyer can advise on what suits your situation.

Signing it correctly

The document must be in writing and 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. If the person is physically unable to sign, someone else may sign for them if the person is present and directs it, and that signer cannot be a witness.

Some people cannot witness, including anyone named as attorney, that person's spouse, child or parent, and anyone under 19. If the document will be used for real estate, it must also be signed and witnessed as the Land Title Act requires. The attorney must also sign in front of 2 witnesses before acting.

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 despite incapacity. If it takes effect only on an event such as incapacity, it must say how that event is confirmed and by whom.

If capacity is doubtful or already lost

If a person no longer understands the points above, they cannot validly sign, and no one else can make an enduring power of attorney for them. If no one has been named and the person 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 of the application must be served on the Public Guardian and Trustee at least 10 days beforehand.

Another route exists: a health authority designate may issue a certificate of incapability, after which the Public Guardian and Trustee becomes the adult's statutory property guardian. Committeeship law is being updated in stages, so confirm the current rules with a lawyer.

Anyone may apply to the court for an order releasing information needed to decide whether an adult is incapable. If you suspect someone pressured the adult into signing, anyone may report to the Public Guardian and Trustee, and reports may cover fraud or undue pressure used to get the adult to make, change or revoke the document.

What to do next

• Act soon if the person's understanding is changing; capacity is tested on the day of signing.
• Decide who the attorney and any alternates should be, and talk to them first.
• Consider whether the person also needs a representation agreement or advance directive for personal care and health care.
• Book a doctor's visit and a meeting with a lawyer or BC notary, and tell them about the diagnosis.
• Gather a list of the person's property and debts so they can discuss it at the meeting.
• If capacity seems lost, speak with a lawyer about the court or certificate options before acting.

The standard government forms are optional. For someone with dementia, professional drafting and a careful signing meeting are often worth considering.

Frequently asked questions