Enduring Powers of Attorney: Key Incapacity Planning Tools

In British Columbia, an enduring power of attorney is one of the primary documents used for incapacity planning. It allows another person, called an attorney, to manage your legal and financial affairs.

A power of attorney does not give your attorney authority to make healthcare decisions for you. Healthcare and personal-care decision making is generally addressed through a representation agreement.

This article discusses the two types of enduring powers of attorney commonly used in incapacity planning and some important considerations when putting one in place.

What Makes a Power of Attorney “Enduring”?

A power of attorney is made “enduring” by including language stating that the authority given to the attorney will continue even if the person who made the power of attorney later becomes incapable of managing their legal and financial affairs.

Without this language, a power of attorney will generally no longer be effective if the person who made it becomes incapable.

For incapacity planning purposes, enduring powers of attorney generally fall into two categories: immediate enduring powers of attorney and springing enduring powers of attorney.

Immediate Enduring Power of Attorney

An immediate enduring power of attorney gives your attorney authority to act while you are capable and continues to be effective if you later become incapable of managing your legal and financial affairs.

Because an immediate enduring power of attorney can give another person significant authority over your finances and property while you are still capable, it should only be given to someone you trust. This may be a spouse, responsible adult child, other family member, or another trusted person.

Springing Enduring Power of Attorney

Some people are uncomfortable giving another person immediate authority over their finances.

A springing enduring power of attorney addresses this concern by providing that the attorney's authority only begins after a specified event occurs.

For example, the document may provide that the power of attorney becomes effective only if the person who made it becomes incapable of managing their financial affairs, with that incapability confirmed in the manner set out in the document.

Springing powers of attorney can provide additional protection while a person remains capable. However, they can also create practical difficulties because the triggering event must be established before the attorney can begin acting.

Selecting an Attorney

Choosing the right person to act as your attorney is an important part of incapacity planning. Your attorney may be given significant authority over your money and property, so the person you choose should be someone you trust to act honestly and in your best interests.

Trust is important, but it is not the only consideration. You should also consider whether the person is organized, comfortable dealing with financial matters, and likely to be available when needed.

For example, if you are deciding between two adult children and both are otherwise equally suitable, it probably makes sense to appoint the child who lives closer to you.

Depending on your circumstances, you may also want to consider your proposed attorney's relationship with other members of your family, whether you should appoint more than one attorney, and whether you should name a backup attorney in case your first choice is unable or unwilling to act.

Contact Me

If you would like assistance putting an enduring power of attorney, representation agreement or last will and testament in place as part of your planning, please contact me.