Tools and information to help you in your work as an attorney under an Enduring Power of Attorney.
You have been appointed as an attorney under an Enduring Power of Attorney (“EPOA”) by a friend or loved one. We have put together this set of tools to help you act as the attorney (‘fiduciary’ or ‘agent’) for the person who granted you the power (the ‘principal’ 0r ‘donor/adult’).
NOTE – If you want to learn about making a power of attorney document, this toolkit is not designed for you. Talk to a lawyer or read other guides about making a power of attorney. See the resources at the end of this toolkit, especially the Nidus materials and the booklet published by the People’s Law School – Power of Attorney (2014).
Before listing the tools, we want to quickly review some general notes about Powers of Attorney, the types of Power of Attorney, the types of attorney under a Power of Attorney, and the general duties and tasks of an attorney.
Keep In Mind:
- Decision making is not given away – it is shared between the attorney and the donor/adult whenever possible
- The attorney cannot override a decision made by the donor/adult while capable
- POAs do not apply to health decisions, or decisions about where an adult lives or who their visitors are – they only apply to financial and legal decisions
- Multiple attorneys may be appointed, to ensure a donor’s wishes are respected
- An POA is not a way for an attorney to get their inheritance early
Types of Powers of Attorney
- General – (“POA”) now fairly rare – ends on incapability
- Specific (Limited) – less common – like general, but for specific purpose(s) and/or limited periods of time
- Enduring (“EPOA”) – common – active now if necessary and continues into incapability
- Springing – common – not active until incapability (or other ‘trigger’) and with capability trigger, ends if the donor regains capabilityNOTE – These categories are not mutually exclusive – an EPOA or Springing POA can be limited or general
An EPOA is specifically defined in the legislation as:
a power of attorney
a) in which an adult authorizes an attorney to
i) make decisions on behalf of the adult, or
(ii) do certain things
in relation to the adult’s financial affairs, and
(b) that continues to have effect while, or comes into effect when, the adult is incapable;
As mentioned, there can be multiple attorneys appointed under a POA. Subsections (4) and (5) of Section 18 of the Power of Attorney Act sets out what happens with more than one attorney:
(4) An adult who names more than one attorney may assign to each of them
(a) a different area of authority, or
(b) all or part of the same area of authority.
(5) If all or part of the same area of authority is assigned to more than one attorney, the attorneys must act unanimously in exercising the authority, unless the adult does one or more of the following in the enduring power of attorney:
(a) describes the circumstances in which the attorneys need not act unanimously;
(b) sets out how a conflict between attorneys is to be resolved;
(c) authorizes an attorney to act only as an alternate attorney and sets out
(i) the circumstances in which the alternate is authorized to act in place of the attorney, including, for example, if the attorney is unwilling to act, dies or is for any other reason unable to act, and
(ii) the limits or conditions, if any, on the exercise of authority by the alternate.
Duties of Attorney
Section 19 of the Power of Attorney Act sets out the four duties and various responsibilities of an attorney:
19 (1) An attorney must
(a) act honestly and in good faith,
(b) exercise the care, diligence and skill of a reasonably prudent person,
(c) act within the authority given in the enduring power of attorney and under any enactment, and
(d) keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult.
(2) When managing and making decisions about the adult’s financial affairs, an attorney must act in the adult’s best interests, taking into account the adult’s current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney.
(3) An attorney must do all of the following:
(a) to the extent reasonable, give priority when managing the adult’s financial affairs to meeting the personal care and health care needs of the adult;
(b) unless the enduring power of attorney states otherwise, invest the adult’s property only in accordance with the Trustee Act;
(c) to the extent reasonable, foster the independence of the adult and encourage the adult’s involvement in any decision-making that affects the adult;
(d) not dispose of property that the attorney knows is subject to a specific testamentary gift in the adult’s will, except if the disposition is necessary to comply with the attorney’s duties;
(e) to the extent reasonable, keep the adult’s personal effects at the disposal of the adult.
(4) An attorney must keep the adult’s property separate from his or her own property.
(5) Unless the enduring power of attorney states otherwise, subsection (4) does not apply to property that
(a) is jointly owned by the adult and the attorney as joint tenants or otherwise, or
(b) has been substituted for, or derived from, property described in paragraph (a).
Section 2 of the Regulations to the Power of Attorney Act set out additional record keeping responsibilities:
2 (1) An attorney acting under an enduring power of attorney must make a reasonable effort to determine the adult’s property and liabilities as of the date on which the attorney first exercises authority on the adult’s behalf, and maintain a list of that property and those liabilities.
(2) An attorney acting under an enduring power of attorney must keep the following records in relation to the period for which the attorney is acting:
(a) a current list of the adult’s property and liabilities, including an estimate of their value if it is reasonable to do so;
(b) accounts and other records respecting the exercise of the attorney’s authority under the enduring power of attorney;
(c) all invoices, bank statements and other records necessary to create full accounts respecting the receipt or disbursement, on behalf of the adult, of capital or income.
A more complete explanation of the roles and responsibilities of attorney is set out in the Nidus publication Role and Responsibilities of an Attorney.
1. New Attorney Checklist – when you first take over as attorney, you want to review your appointing document, noting any conditions and restrictions. You’ll want to confer with the donor/adult, and any other attorney. Deliver copies of the EPOA document to relevant parties, and organize your reporting and documentation. Our checklist will make sure you have all of this covered.
2. Inventory – you will want to have an inventory of the adult/donor’s property, and an estimate of their value where possible, as required by Regulation 2(2)(a) above. This includes not just real estate, vehicle(s) and personal property (furniture, appliances, electronics, clothing, jewelry, collectibles, etc.) but also financial assets such as bank accounts, GICs, Annuities, RRSP/TFSA, stocks, bonds, etc. as well as liabilities such as loans, mortgages, credit cards, lines of credit etc.
3. Budget – while not specifically required in the Act or Regulations, you should have a budget that lists various sources of income and expenditures. This will help you keep track of spending within budget, and will be the basis of reports you should be sending to the donor/adult.
4. PFILE System – We recommend that you set up a filing system for all of the records you will keep as the attorney. You can have a file folder for the bank records sent each month. If there are financial reports for investments, these can also be put into file folders. You will also need to prepare, file and keep a copy of annual income tax returns. Perhaps one folder for each year’s worth of reports.
For the other important documents, the donor/adult may already have a filing system. If not, you could use a filing system with file folders, a binder with expanding sheet protector dividers, or even manila envelopes. We recommend an expanding poly file folder with multiple pockets to keep the various important documents all in one place, protected from the elements. You can buy a 26 pocket poly file folder, that will accommodate the 26 important types of documents in the five different categories of the PFILE system – Personal, Financial, Insurance, Legal, and Estate Planning:
1. Birth Certificate, Adoption Papers
2. Education/Military Service
3. Employment History/Resume/CV
4. Prenuptial Agreement/Marriage License/Divorce/Separation Agreement
5. Personal and family history
6. Religious Documents
7. Medical History/List of Doctors/Prescriptions/Health Records
8. List of Bank Accounts & Bank Statements & Safety Deposit Box
9. Credit & Debit Cards
10. Taxes – Property & IT Returns
11. Certificates of Deposits/Savings Bonds/Mutual Funds/Stock Certificates
12. RRSP/RRIFs/LIFs-RLIFs/LIOs/Annuities & TCA 90
14. Fire (Property) Insurance
18. Deed to House/Strata/Cottage or Lease
19. Mortgages & Loan Agreements
20. Passport, Citizenship Papers
21. Vehicle Title/Registration
22. Corporation/Partnership Documents
V. Estate & Incapacity Planning
23. Power of Attorney
24.Representation Agreement & Advance Directives
25. Wills, Wills Registry Information, Codicils & Letter of Instructions to Executor
26. Trust Documents
6. Personal Financial Management Software – There are various software programs that can help with managing personal funds. Perhaps the best known is Quicken from Intuit. With Quicken you can download bank account records and reconcile the accounts. A free online service for personal finances is Mint, also from Intuit. A listing of other free personal finance software is available here: http://www.techsupportalert.com/best-free-personal-finance-software.htm
7. Reports – As was mentioned, the Regulations require you to produce the records listed in the Regs for inspection and copying at the request of the adult, or in accounting to the Public Guardian and Trustee. This means generating financial reports. With finance software like Quicken, it is much easier to print the required reports.
TIP – you are taking on a commendable, but fairly onerous and largely thankless job as the attorney for someone else. Make your job as easy as possible when you start. When your friend or relative first approaches you to be their attorney insist, as a condition of agreeing, that they get organized and have their ‘ducks in a row’ by using tools 2-6. Then when it is time for you to take over their affairs, there is much less to do at first!
We set out below some resources on personal planning:
- Attorney General – Incapacity Planning – webpage has downloadable pdf forms for basic EPOA, s7 & s9 RA’s
- LSLAP Manual – Chapter 15 of the manual produced by law students at UBC, on Adult Guardianship
- Ministry of Health – My Voice – advance planning workbook including Enduring Power of Attorney, Representation Agreements and Advance Directives
- Nidus – Nidus Personal Planning Resource Centre and Registry – website has various fact sheets on Enduring Power of Attorney, Representation Agreements, Advance Directives, roles & responsibilities, revoking & resignation
- Peoples Law School –
- Public Guardian & Trustee – “It’s Your Choice – Personal Planning Tools” – good plain language planning booklet – EPOAs,RAs, ADs.
- What It Means to Be a Trustee: A Guide for Clients Acting as Fiduciaries Community Legal Education BC at – http://www.cle.bc.ca/PracticePoints/WILL/12-Trustees.pdf
- What Every Older Canadian Should Know About: POWERS OF ATTORNEY (for financial matters and property) and Joint Bank Accounts – published by the Federal/Provincial/Territorial Ministers Responsible for Seniors http://www.seniors.gc.ca/eng/working/fptf/attorney.shtml
- Managing Someone Else’s Money – while this is an American publication, it is a good description of how to manage your donor/adult’s money.
- Private Committee Handbook – published by the Public Guardian and Trustee – while this is about the responsibilities of a Committee (guardian of an adult) much of the information is applicable to your role as a fiduciary attorney.