Enduring Power of Attorney Fact Sheet - Nidus Personal Planning ...

This information is based on legislation in the province of British Columbia.
Enduring Power of Attorney Fact Sheet
Planning for Financial and Legal Matters
“We thought we had everything covered with our Will and
joint ownership.”
What is a Power of Attorney?
A Power of Attorney is a legal document under
the Power of Attorney Act. It is a way to appoint
someone to act on your behalf for financial and
legal matters. The person who makes the Power
of Attorney is referred to as the donor and the
person appointed in the document to act on the
donor’s behalf is called the attorney.
The Power of Attorney was originally used as a
business tool. For example, if John and Hideki are
joint business partners, John can appoint Hideki
as his attorney. This means that if John is out of
town or otherwise not physically available, Hideki
can sign contracts, deal with banking and manage
other matters on behalf of the business. John
might also make a Power of Attorney for personal
use. He and his wife Mary may each make one to
appoint their daughter Anna so she can pay bills
for them when they go on vacation.
A general Power of Attorney covers all financial
and legal matters. A Power of Attorney may be
limited to dealing with specific matters, such
as signing the homeowner grant or managing a
specific bank account. A Power of Attorney may
also be limited to a specific time period, such as
the dates John and Mary are away.
But what if John has a serious accident or a
stroke or Mary develops dementia? Will the Power
of Attorney still apply? A Power of Attorney ends
if the donor becomes mentally incapable, unless
it includes the enduring clause. Most Powers
of Attorney made today will include this clause
but you will not find the word enduring in your
document. Instead, you will find a sentence
which is referred to as the enduring clause.
What is the Enduring Clause in a Power of
Attorney?
The following sentence is an example of wording
that may be used in a Power of Attorney to ensure
that it will continue to be effective even if you
become mentally incapable.
In accordance with the Power of Attorney Act
I declare that this power of attorney may be
exercised during any subsequent mental infirmity
on my part.
What is a Bank Power of Attorney?
Banks and Credit Unions may provide Enduring
Power of Attorney forms you can use at their
institutions. For example, John could appoint his
wife Mary or daughter Anna on the Bank Power
of Attorney. This can be convenient, but it is also
limited.
The Bank Power of Attorney only covers accounts
at that particular institution. It will not let Mary
or Anna deal with accounts at other financial
institutions, Canada Revenue Agency or the
insurance company. With a general Enduring
Power of Attorney, John would have all financial
and legal matters covered.
How do I make an Enduring Power of
Attorney?
Most people will go to a notary public or a lawyer
to make an Enduring Power of Attorney. To find a
lawyer, call Lawyer Referral Service at 604.687.3221
or 1.800.663.1919. To locate a notary public near
you, contact the Society of Notaries Public of B.C.
at 604.681.4516 or 1.800.663.0343 or visit www.
notaries.bc.ca.
Who should I appoint in my Enduring Power
of Attorney?
People usually appoint a spouse, family member
or friend in their Enduring Power of Attorney. The
people you appoint do not have to live in B.C. It
is common for spouses to appoint each other. You
can appoint someone else in the same Enduring
Power of Attorney or make an additional one so
that you have a back-up in the event something
happens to both of you. For example, John and
Mary can appoint each other but they may also
want to each appoint Anna as a second attorney.
©2010 Nidus Personal Planning Resource Centre. All rights reserved. Permission to copy for non-commercial purposes
and only as a complete publication. Last updated July 2010. This fact sheet is not legal advice.

Sometimes people appoint a Trust Company, a
Credit Union, or a professional. These parties
will charge a fee for their services and special
wording is required in the Enduring Power of
Attorney to cover this.
Who can make an Enduring Power of
Attorney?
To make an Enduring Power of Attorney you must
be considered mentally capable. The law requires
that you understand the nature and effect of
signing an Enduring Power of Attorney. In general,
this means that you must understand what you
own and what you owe, as well as the possible
consequences of giving someone else the authority
to manage your financial and legal matters.
If someone is not considered mentally capable
of making an Enduring Power of Attorney, there
is another legal document available which can
cover routine financial and legal matters. For
example, if Mary is not able to sign the Enduring
Power of Attorney because of dementia, the
Representation Agreement Act says she may
make a Representation Agreement even if she
cannot currently manage her own affairs or make
decisions independently. If you know someone in
this situation, contact Nidus for more information.
When should I make an Enduring Power of
Attorney?
Many people will make more than one Enduring
Power of Attorney in their lifetime. After an
individual turns 19 years old, the age of majority
in B.C., parental rights end. As an adult, no one,
not even a spouse, has legal authority over your
financial or legal affairs. This may be a problem
if you need help because of an illness, injury or
disability.
Even if you own real estate, a vehicle or other
assets jointly with your spouse, you each need
to consider making an Enduring Power of Attorney.
Owning assets jointly does not give you or your
spouse legal authority to sell that asset if one of
you were to become incapable. For example, if
John and Mary are named jointly on an asset
such as a motor home, and Mary becomes
mentally incapable, John would not have the legal
authority to sell their motor home on his own.
Does my attorney get paid?
Unless you specify it in your Enduring Power
of Attorney, an attorney must not take or
receive any personal benefit from acting as your
attorney; this includes taking a fee or borrowing
your money. An attorney can be reimbursed for
reasonable out-of-pocket expenses and he or she
must keep records and receipts of any claims.
When does an Enduring Power of Attorney
take effect?
An Enduring Power of Attorney comes into effect
as soon as it is signed and witnessed. You can still
manage your own affairs even though you have
made this document.
Sometimes people think about adding wording to
say the Enduring Power of Attorney will only come
into effect when they are mentally incapable.
This will not work if you need help because of a
physical condition (e.g. you are confined to hospital
and cannot get to the bank) or if you have memory
problems that come and go. You may need help
at certain times or with specific things but you are
not mentally incapable. It is important to choose
people you trust and to talk with them about when
they should start to act for you.
Can I revoke my Enduring Power of
Attorney?
Yes, if you are capable of making an Enduring
Power of Attorney, you are capable of revoking
it. Making a new Enduring Power of Attorney
does not automatically cancel your previous one.
To revoke it you should notify each person you
appointed in writing. It is a good idea to also
notify your financial institution and other places
you might have given copies to.
When does an Enduring Power of Attorney
end?
An Enduring Power of Attorney ends when you
die; then your Will takes over. It also ends if you
revoke it or if someone is appointed to be your
legal guardian (i.e. Committee of Estate) through
the Court or if the Public Guardian and Trustee
takes over your affairs.
What is not covered by the Enduring Power
of Attorney?
An Enduring Power of Attorney only covers
financial and legal matters affairs; not health
care or personal care matters. A Representation
Agreement is the only way in B.C. to appoint
someone to act on your behalf for health care and
personal care matters. See the Nidus fact sheet
on Representation Agreements.
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A special thanks to the funders: The Law Foundation of BC,
Vancouver Foundation and The Notary Foundation.
Register your Enduring Power
of Attorney with the Nidus Registry
registry@nidus.ca