I gave my daughter power of attorney a few years ago. Do I need
to do a new one because the law changed last fall?
Good question. On September 1, 2011, the enduring power of
attorney laws did change significantly in B.C. However, your
existing document should still be valid, as existing powers of
attorney were grandfathered under the new provisions of the
Power of Attorney Act.
The law still permits you to authorize an attorney to make
decisions for you, and do certain things, while you are incapable
(that's the "enduring" part).
What has changed is the signing requirements and that, when your
daughter acts as your attorney, she will be governed by the new law
and will have different powers and limitations. If you do not want
those particular changes then you may have to revoke your power of
attorney and make a new one on different terms.
For example, under the new law, your attorney may make gifts,
loans and charitable donations that you would have made, but only
up to a maximum of $5,000 and only if you will have sufficient
property left over to meet your needs (and anyone you are
supporting). If you want your attorney to be able to make more
generous gifts – to your children, grandchildren,
favourite charities or anyone else – then you will have
to spell that out in your power of attorney.
Under the new law, from the time your daughter first acts as
your attorney, she must keep an ongoing list of all your assets and
liabilities, including an estimate of their value. She will also
have to keep track of every receipt and disbursement. The duty to
account is no different, but it's now set out in the
legislation. And the duty begins when your daughter first acts,
even if you are still capable. (So if you are out of town and your
daughter helpfully uses your power of attorney to renew your house
insurance, she may now be obliged to keep a list all of your
property and accounts.)
Your daughter will not be paid for her duties as attorney,
unless your power of attorney sets out the rate or amount of
compensation. If the document is silent on this, she can't be
paid from your money. Many of our clients will want the attorney to
receive some modest compensation.
The new law has other changes you should discuss with your
lawyer. Many of the changes are aimed at permitting attorneys to
better manage the assets of adults who trust them as attorneys to
look after their financial affairs. Other changes are aimed at
protecting those adults in our society who, particularly as they
age, may be vulnerable to financial abuse.
Originally published in Vancouver Foundation magazine,
Spring 2012 issue
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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