- An enduring power of attorney names an attorney to make decisions about your financial affairs, and it keeps working if you become mentally incapable.
- It does not cover personal care or health care, which are handled through representation agreements and advance directives.
- Only an adult aged 19 or older who understands the document's nature and consequences can make one, and it must be signed and witnessed in a set way.
You may have been told by a bank, a family member or a professional that you need an enduring power of attorney. The term sounds technical, and it is easy to confuse with other planning documents that have similar names.
This article explains in plain terms what an enduring power of attorney is under British Columbia's Power of Attorney Act, what makes it "enduring", and what it does and does not cover. It is general information, not advice on your own situation.
This article covers the law of British Columbia.
The short answer
An enduring power of attorney is a written document in which an adult names another person, called the attorney, to make decisions about the adult's financial affairs. The word "attorney" here does not mean a lawyer. It simply means the person you give authority to.
You can give your attorney general powers, or you can limit them to specific ones. The Ministry of Attorney General's standard enduring power of attorney form is optional.
What makes it "enduring"
An ordinary power of attorney ends if the person who gave it becomes mentally incapable. An enduring power of attorney keeps working even after that happens. That is the whole point of the "enduring" label: it is meant to be there when you most need someone to step in.
To be enduring, the document must say two things:
- whether the attorney may act while you are still capable, or only once you are incapable
- that the attorney's authority continues even though you are incapable
If you become incapable after making an enduring power of attorney, the attorney's authority continues. Also, any direction in the document to do something the law prohibits, or to leave out something the law requires, is severed and has no effect.
What it covers, and what it does not
An enduring power of attorney is about money and property. Personal care and health care decisions are made through representation agreements and advance directives, not through an enduring power of attorney. These documents do different jobs, and many people use more than one.
| Document | What it is for |
|---|---|
| Enduring power of attorney | Naming an attorney for your financial affairs |
| Representation agreement | Personal care and health care; a standard (s. 7) agreement can also cover routine management of financial affairs and legal services |
| Advance directive | A capable adult's written instruction giving or refusing consent to health care, for times when they cannot give instructions |
There is one more limit worth knowing. An attorney must not make or change a will for you, and any will or change an attorney makes has no force or effect. The document also ends when you die. After a death, the executor named in the will carries out its instructions.
Who can make one, and how it is signed
Only an adult can make an enduring power of attorney, and in this part of the Act an adult is someone aged 19 or older. You may make one unless you cannot understand its nature and consequences, and capacity is presumed until the contrary is shown.
The Act sets a specific test rather than relying on a diagnosis. You must understand:
- what property you have and roughly what it is worth
- your obligations to your dependants
- that the attorney can do anything with your financial affairs except make a will
- that your property may lose value unless the attorney manages it prudently
- that the attorney might misuse the authority
- that you can revoke the power while you are capable
This means a person with early dementia who still understands these points can sign.
The document must be in writing, and signed and dated by you in front of 2 witnesses, who must both sign in front of you. 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. Certain people cannot witness, including anyone named as attorney and that person's spouse, child or parent. Different rules apply if the document will be used for real estate transactions under the Land Title Act.
What to do next
If you are thinking about an enduring power of attorney, or you have been asked to sign or accept one, a few practical steps help you avoid problems later.
- Decide whether you want general powers or only specific ones.
- Decide whether the attorney should act right away or only once you are incapable.
- Think about who you trust, and whether you want a back-up person.
- Ask separately about personal care and health care, which need different documents.
- Check who will witness the signing, so no one barred from witnessing is used.
- Talk to a lawyer if the document will be used for real estate, was made outside British Columbia, or your capacity might be questioned.
Frequently asked questions
Do I still need an enduring power of attorney if I have a will?
A will and an enduring power of attorney are separate documents. An enduring power of attorney terminates when you die, and an attorney cannot make or change a will for you. After a death, the executor named in the will carries out its instructions. Whether you need either one depends on your situation, so it is worth confirming with a lawyer.
Can a person with dementia sign one?
Possibly. The Act asks whether the person understands the nature and consequences of the document, not whether they have a diagnosis, and capacity is presumed until the contrary is shown. If capacity is doubtful, a lawyer can advise on how to handle the signing.
Does a document made outside British Columbia count?
It may. A power of attorney made outside the province is deemed an enduring power of attorney in BC if it continues when the adult is incapable and meets the prescribed requirements, including a solicitor's certificate in the form in the Schedule. A lawyer can confirm whether yours qualifies.
Does the attorney decide my medical treatment?
No. Personal care and health care decisions are made through representation agreements and advance directives, not an enduring power of attorney.
Sources
- Power of Attorney Act, RSBC 1996, c. 370, s. 10 — bclaws.gov.bc.ca
- Government of BC – Substitute Decision-Making and Incapacity Planning — www2.gov.bc.ca
- Government of BC – Incapacity planning — www2.gov.bc.ca
- Government of BC – After a Death: Deal with wills and estates — www2.gov.bc.ca
- Representation Agreement Act, RSBC 1996, c. 405, s. 7 — bclaws.gov.bc.ca
- Power of Attorney Regulation, s. 4; Power of Attorney Act, s. 38 — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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