Powers of Attorneys are frequently utilized in estate planning, to allow an individual to act on another’s behalf, to deal with that person’s financial and legal affairs. This could include dealing with bank or credit union accounts, getting information from Canada Revenue Agency in order to do your income tax, insuring or selling your car, or selling real estate.
A general Power of Attorney is effective once it is signed and remains so, until it is revoked. You can revoke a Power of Attorney at any time as long as you are capable, and the revocation must be in writing (N.B. a Notice of Revocation).
The person receiving the power is called the Attorney. The Attorney will not receive payment for acting as the attorney and is prohibited at law from personally benefiting from their authority. Beyond that, they are required by law to maintain accurate banking and bookkeeping records, and be able to account for all the money and property they handle.
Although their actions are not monitored, the Public Guardian and Trustee (“PG&T”) can demand an accounting if they receive a complaint of abuse of an incapacitated adult. It is important to recognize that under BC law, the attorney is only accountable personally to the donor, and to the PG&T if a demand is made. Even if the donor becomes incapacitated, the attorney is not required to account to other family members.
The courts general role is to prevent harm from occurring to individuals, and to compensate individuals when they are harmed. The remedies that exist in this situation can be summarized as follows:
- Asking a civil court to order the attorney to provide an accounting of how the donor’s money has been spent;
- Suing the attorney in civil court to un-do transactions conducted by the attorney (rescission);
- Suing the attorney in civil court for misappropriating the donor’s money or assets (conversion); or,
- Asking the court to declare the donor to be incapacitated and appoint a committee (guardian) under the Patients Property Act to make decisions on behalf of the donor or a monitor to oversee the attorney’s actions on behalf of the donor. The appointment of a committee, whether it is a family member or the PG&T, cancels the POA.
- Under the Power of Attorney Act, a concerned person may make a report to the PG&T regarding any abuse or undue influence of an attorney. The PG&T may recommend that the person apply to court under section 36 of the Power of Attorney Act, and a Judge “may make any order that the court considers necessary….”