"Enduring Powers of Attorney to Endure Beyond September 1", Vancouver Sun

by Janice and George Mucalov

British Columbians can breathe a little easier, now that their dying wishes will be easier to carry into effect.

On March 12th, thanks in large part to a vigorous campaign by local lawyers, the Attorney General announced that "enduring powers of attorney" will remain beyond September 1st, rather than being snuffed out.

Why should you care?

Because life throws us curve balls, and it is possible to become mentally incapacitated. A speeding teen can put you in a coma in hospital. Or you may face a debilitating or terminal illness.

With an enduring power of attorney, your spouse or accountant son or other trusted family member or friend you name can look after your financial and property matters for you, if you can't do so yourself.

You may already be familiar with a power of attorney. That's the legal planning document that allows another person to act on your behalf in financial and legal matters - such as paying your bills while you're away in England for the summer visiting your grandchildren. But the run-of-the-mill power of attorney isn't valid if you become mentally incapable.

What it takes is an extra clause saying that the person or persons you've named can continue to act for you if you become incapable. This turns a power of attorney into an enduring power of attorney.

If you just want your "attorney" to have the power to act for you if you become incapable, you can specify that the enduring power of attorney only takes effect on your incapacity. But banks tend to frown on such a condition or restriction and may not accept the document.

So what some people do is prepare an enduring power of attorney but leave it with their lawyer for safekeeping for when it's needed. It's released only if the lawyer gets a call from their client or the named person authorizing its release and (if appropriate) after making a call to the family doctor to confirm their client's incapacity. It's a simple and inexpensive way for you to do some advance planning and can easily be done when you make your will.
It beats the alternative - forcing your family or loved ones to go to court to appoint a "committee" of one or more people to look after your legal and financial affairs - a more complicated and expensive process.

It also beats making what's called a "representation agreement". Part of a new set of adult guardianship laws, representation agreements were introduced in February, 2000 as a new way to plan for incapacity.

Triggered by concerns about possible abuses of enduring powers of attorney, the idea behind representation agreements was that you could appoint someone you trust (your "representative") to make decisions for you if you can't in future - including serious health care decisions like refusing life support - without the hassle and cost of going to court, but with safeguards built in. For example, everyone involved - from you and your representative to your lawyer to the witnesses - all have to sign certificates of compliance with the new Representation Agreement Act.

The idea was also to allow people whose mental capacity is already diminished to express their wishes too.

The problem is that - compared to a simple one-page enduring power of attorney - representation agreements are long, complex, hard to make, hard to understand and relatively expensive. The one good thing about them is that they are a proper way to specify what kind of medical care you want in future, and certainly better than the quasi-legal, though not necessarily binding, "living wills".

Given the problems with representation agreements, no one was very happy with the old plan to replace enduring powers of attorney with representation agreements come September 1st.

The government's announcement on March 12th is thus good news.

Based on proposed changes, enduring powers of attorney will remain the main tool for advance planning in financial and property matters. Representation agreements, on the other hand, will mostly be limited to personal and health-care decisions. And those people who already have difficulty can give limited powers to their representative to manage their some of their financial, personal and medical affairs.

In the meantime, it's worth thinking about how you would want your affairs handled and who you'd want to make decisions for you, if you are badly injured or become seriously ill in future.

© Copyright by Janice and George Mucalov

A version of this column was first published in the Vancouver Sun. The column provides information only and must not be relied on for legal advice. Consult your lawyer if you need legal advice.