What an Attorney Can and Cannot Do in British Columbia

If you have been named as someone's attorney, or you are thinking of naming one, the first question is usually how far the role goes. Can the attorney sell a house, pay for care, give money to family, or decide on medical treatment?

This article sets out what an attorney can and cannot do under British Columbia's Power of Attorney Act. The exact scope of any one document depends on its wording, so use this as a guide to the questions to ask.

This article covers the law of British Columbia.

What an attorney may do

An adult can authorize an attorney to make decisions about their financial affairs, and can give that attorney either general powers or only specific ones. Reading the document carefully matters, because it sets the starting point for what the attorney may do.

Within that authority, the Act also gives the attorney some practical tools:

• The attorney can be reimbursed from the adult's property for reasonable expenses properly incurred while acting.
• The attorney may ask for information and records about the adult that relate to the adult's incapacity or the attorney's authority.
• The attorney may apply to the BC Supreme Court for directions on the scope of their powers and duties.
• The attorney must invest the adult's property under the Trustee Act unless the document says otherwise.

What is outside the attorney's power

Some things are off limits or tightly restricted, no matter how broad the document is.

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 duties that come with the role

Being an attorney is a position of trust. The Act requires the attorney to:

• act honestly and in good faith, with the care, diligence and skill of a reasonably prudent person, 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
• make a reasonable effort to find out the adult's property and liabilities and keep a list, and keep accounts and all invoices, bank statements and other records needed for full accounts

The separation rule does not apply to property the adult and attorney own jointly, unless the document says it does. Where reasonable, the attorney must also put the adult's personal care and health care needs first and foster the adult's independence.

Gifts, loans and payment

An attorney may make a gift, loan or charitable gift from the adult's property if the document permits it. If it does not, all three conditions must be 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, and the total for the year is within the prescribed limit. Where the document does not authorize gifts, that limit is the lesser of 10% of the adult's taxable income for the previous year and $5 000.

An attorney must not be paid for acting unless the document expressly authorizes payment and sets the amount or rate. Family members should be especially careful here, because reimbursing expenses and being paid are different things.

If something goes wrong, and what to do next

Anyone who has reason to believe an attorney is abusing or neglecting the adult, is incapable of acting, or is failing to follow the document or their duties may report to the Public Guardian and Trustee. The Public Guardian and Trustee must promptly review a report and may investigate. The BC Supreme Court may terminate all or part of an enduring power of attorney on application.

• Read the document and note whether powers are general or specific.
• Start a list of the adult's property and liabilities, and keep every record.
• Keep the adult's money in separate accounts.
• Do not make gifts, change beneficiaries or pay yourself without checking the document and the Act.
• If you no longer wish to act, resign by 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.
• Get legal advice before taking a step you are unsure about.

Frequently asked questions