The Power of a Power of Attorney
It can be very helpful for adults to have a Power of Attorney (POA).
A POA gives an appointee the ability to act on behalf of an adult regarding legal and financial matters, making it easier to deal with a variety of scenarios that can occur during our lives.
Here a few examples of real-world situations where a POA was, or would have been, helpful:
Selling third-party assets to pay for care - Recently, my client Brian came into the office. Through a POA, he had been appointed attorney for his sister and brother-in-law. Unfortunately, Brian’s sister and brother-in-law were in a car accident. His sister passed away and his brother-in-law survived the crash but suffered a severe brain injury. Because he had Power of Attorney, Brian was able to sell his brother-in-law’s property because it was necessary to move him to a care facility for the foreseeable future. If Brian had not had Power of Attorney, the process of selling the property would have taken some time to go through the Court process in order to legally appoint a committee . . . a person to handle matters in the brother-in-law’s stead. Brian’s brother-in-law did not have the funds to get into the facility without the sale of the property so it was extremely valuable that the POA document was already in place.
Executing legal documents when a signatory is unavailable - Darlene and Bill had found their “dream home” and hoped to purchase it and sell their current home. Bill’s work takes him to live in a camp near the North Pole for 2 months at a time where he cannot be reached. The completion dates for both the purchase and sale were to take place during the time Bill was in camp. Our Notary office prepared Powers of Attorney for Darlene and Bill who were able to complete the purchase and the sale with the assistance of those documents.
Avoiding the need for court appointed committeeship - Donna came into our office to discuss getting a Power of Attorney for her young adult son Brent who was in his 20s. He had suffered a severe brain injury. Since Brent was no longer capable of appointing an attorney, his mother had to proceed by way of applying for committeeship where the Court appointed her Brent’s guardian. She advised that the process was lengthy and lead to significantly more costs and stress than if a Power of Attorney had already been in place.
Managing the affairs of an adult who in no longer capable of making their own decisions - Siblings Darryl and Lila came into our office hoping to get a Power of Attorney for their mother Jean. She had already lost her mental capacity and had moved into assisted living but still owned a condo. Darryl and Lila were paying the strata fees and property taxes for the empty condo and could not sell the property on behalf of their mother because they did not have Power of Attorney. They were unable to rent out the condo because the strata had a rental restriction. Darryl and Lila had hoped they could get a Power of Attorney, but because their mother did not have capacity, we were unable to assist them. Darryl and Lila were stuck paying all the fees associated with keeping the condo as long as their mother was alive. That was a very unfortunate but common situation that could have been avoided if a Power of Attorney has been in place while Jean still had capacity.
There is a common misconception that an individual will lose control of his or her finances by appointing an attorney under a Power of Attorney. While the appointment of an attorney does not come without some risk, a person capable of managing his or her own affairs will continue to do so. As shown in the above examples—just a few of the many stories out there, the benefits of having an attorney far outweigh the risks.
It is important that clients have all the relevant information they need to make an informed decision when choosing an attorney for their Power of Attorney document. BC Notaries can advise regarding the positives, the potential negatives, and the process of appointing an attorney.
Note: The names in this article have been changed to protect privacy.
Kim McLandress is a BC Notary practicing with Simpson Notaries in Chilliwack, BC.
Posted in Personal Planning