Having a Power of Attorney is a huge responsibility. If one is ever granted a power attorney by a loved one, the person who grants that authority (the “Grantor”) is putting you
in charge of them if they were ever to become mentally incapacitated.
Here are 10 important things to know if you are holding a Power of Attorney.
1. Ensure you have a valid Power of Attorney and financial representation agreement.
Make sure your agreement is valid under the Power of Attorney Act (British Columbia). For instance, if you are appointed an enduring Power of Attorney prepared by a lawyer or notary public in British Columbia, it is likely valid and will continue throughout the Grantor’s incapacity. However, if the document is specific, conditional, prepared, signed in another jurisdiction, or hand-drawn, the document might not be valid. If this happens, you may not have the authority to act under the Power of Attorney.
If you are unclear whether or not the Power of Attorney is valid, obtain legal advice as soon as possible.
If you are not authorized to act as a power attorney but do act, you will be held liable. If the Power of Attorney is invalid, consider handling the matter at the Public Guardian and Trustee or apply to become a committee of the individual.
2. Determine if there is a living will and/or health care representation agreement.
Health care decisions must be made under the Health Care (Consent) and Care Facility (Admission) Act. This act states that all decisions made about the person in medical care can only be through the person who is authorized under this act. This includes decisions made about their health care, as well as the health care facility itself.
3. Obtain & safeguard assets
Ensure that all of the Grantor’s assets are accounted for. Properly ensure and secure all assets as needed. This includes organizing and tracking online financial transactions. Make sure PIN numbers, bank accounts, locks, et cetera are not being used by others. It is recommended to change locks on the house as well, as well as take any other necessary security precautions.
4. Keep financial records
It is wise to keep records of all of your actions as an Attorney, as you may need to access them later.
It is especially important to keep all financial records in writing. It is suggested to refrain from using a debit card to obtain cash from the donor’s bank account. Instead, make all transactions from a separate chequing account for which you receive the returned cheques. This way, you are able to reimburse yourself for reasonable and necessary expenses.
If the Grantor is still mentally capable but wishes for you to act due to ill health, you should come up with a plan together to allow the Grantor some access. One common solution is to create a separate account with some spending money for the Grantor, making it easier for you to track expenses between the two of you.
5. Change of Grantor capacity
Always be conscientious of a person’s Grantor capacity. Their mental and physical state should be monitored regularly in case they are improving or regressing by both whoever has Power of Attorney and health care professionals. Whenever possible, the Grantor should be part of the decision-making process.
Power of Attorney requires good communication with all involved. It is especially important to communicate with other family members who might be involved in the Grantor’s status whenever possible. Communication should include what you are doing, and why you are doing it. Failure to communicate often leads to problems, especially during a stressful time for all, so be sure to keep those involved in the situation informed.
7. Act in the Grantor’s best interest
If you are acting under Power of Attorney, remember to act in the Grantor’s best interest. This might not always be in the interest of a potential beneficiary under the Grantor’s will. For example, if better care costs more money, remember it should be spent on the Grantor, not tucked away for future use of beneficiaries under the Grantor’s will.
8. Check the will
It is imperative to check the will for who the ultimate beneficiaries are. This way, you won’t act in conflict with the estate plant. Ensure the proper assets are given away to the beneficiaries of the Grantor’s choice. Additionally, don’t inadvertently delete RRIF beneficiaries by changing financial institutions.
9. Seek professional advice
Unfortunately, tensions can be high between family members of the Grantor and the person with Power of Attorney. If a hostile relationship arises, it is important that you seek professional advice when legal, healthcare or financial matters need professional backing. Additionally, if you are ever in doubt as to what the best course of action might be, never be afraid to seek legal advice.
10. Taking the next step
Having Power of Attorney is extremely important, and often complicated. If you are ready to take on this responsibility, call or text us today for a consultation.