By Amy-Alexandra Jaworsky
Power of Attorney
Notice required! If you change or revoke your enduring power of attorney, you must give written notice to the persons you appointed as your attorney(s) for the change or revocation to be effective.
POA terminated! If a person becomes a “patient” under the Patients Property Act (for example, if an adult child applies to the court to be appointed the guardian of the affairs of a parent who has lost capacity) a Power of Attorney previously granted by the adult is terminated.
Sharing information! Only you, the Public Guardian and Trustee or the court can require the person you appointed as your attorney to explain how they have handled your finances. If you want other family members to be able to access information about how the attorney is dealing with your finances, another option is to make this clear in your power of attorney document.
Access without probate? Having a Will is useful, even if you have very modest assets. With a Will in hand and depending on your assets and how much money is in your bank account, a financial institution may permit your executor to access your funds after you pass away without obtaining a grant of probate from the court but if you do not have a Will, then the financial institution does not know who has authority to deal with your assets.
Tax implications! If you transferred your home into joint names with another person who does not live in the home and then you pass away, when your executor gets your tax returns done, your estate may not be able to claim a capital gains exemption for the whole home for the period of time the home was held in joint ownership. If your home increased in value significantly during that time period, the transfer may have unintended negative tax consequences.
No gift! If you give a gift to someone in your Will and that person is also a witness to your Will or the spouse of a witness, then the gift to that person is void unless your Will says differently.
Who makes decisions? If you do not want your spouse or child to make health care decisions for you when you are not capable then you can appoint a trusted person who will have the authority to make those decisions by preparing a representation agreement. If you do not appoint someone, then provincial legislation ranks temporary decision makers for health care in a certain order (ie spouse, adult child, parent and then others) and health care providers will make reasonable efforts to choose the first person who qualifies and is available.
Spouse’s authority ends! If you and your spouse separate, the spouse’s authority in your representation agreement ends unless your agreement says differently.
No authority! You cannot appoint someone to be your representative if they are paid to provide care to you or if they are an employee of a facility through which you receive personal care or health care (unless that person also happens to be your spouse or child).
Your specific situation may impact the examples given in this article. Consult a professional if you have any questions.
Amy-Alexandra Jaworsky of Island Law Office is a Victoria lawyer practicing in the areas of wills, probate and residential real estate. firstname.lastname@example.org / 250.858.0344.