How to Handle Your Enduring Power of Attorney Documents
- The original Enduring Power of Attorney (“POA”) should be kept in a safe, secure place. The appointed Attorney needs to know where the POA is located. A safety deposit box is the best place as long as the Attorney knows where the box is located and has access to the key and the box.
If you place the POA in a safety deposit box, either an original should be kept outside the box so that it can be used to access the box (a reason you normally receive two original documents). Another alternative is for your Attorney to be joint owner of the box or have a bank POA to gain access. You would need to talk to your box provider about the preferable course of action.
- Unless the Attorney is specifically permitted in writing in the body of the POA document to exercise it for his/her own benefit, the Attorney is obligated to use it only in your best interest. For example, your Attorney cannot transfer your land to himself or herself or legally transfer money from your bank account into his or her own bank account.
It is your decision whether or not you give your POA document (the original or a photocopy) to your Attorney. Remember, your document is valid to use immediately upon the signature page being completed, unless it is a conditional appointment, so if you give the original POAs to your Attorneys, they can use it once they have signed it. This includes being able to access your bank account.
You should give at least a photocopy of your Letter of Intent to your Attorneys, if you have this document, so that they understand they are to act only under the conditions laid out in the Letter of Intent. The letter of Intent should not be given to a financial institution. This document’s main function is to set up an informal priority between Attorneys without restricting an “alternate” Attorney’s authority to act for you in an emergency if the primary Attorney is unavailable temporarily, or at your request.
Usually banks and other institutions will require the original or a certified true copy of the POA. You need to consider the level of trust you have in your Attorney (which should be high in all cases) before you give them an original POA. Whether the Attorney is primary or alternate, the security of the Attorney’s storage, your stage of life, your health issues, and the possibility of future revocation of the POA are considerations. It can be difficult to effectively revoke a POA because an unscrupulous Attorney may continue to try and use the POA if they have the document. If you wish to revoke your POA, we suggest you contact us.
- If banks, brokers, or others require evidence of it for their records, they should be provided the original only long enough for them to make a photocopy for themselves. Never allow a financial institution to have an original. If the institution makes a copy, make sure you get all original pages of your POA returned to you. They should not remove the staple to photocopy the POA, as that increases the likelihood that pages will be lost or rearranged. You can also get a notarially certified true copy of your POA to give to institutions.
- Should your Attorney ever need to use the POA on your behalf to transfer your real property, it will be necessary to have it registered in the Land Title Office. The lawyer or notary public acting for you in this regard will require the original POA in order to register it in the Land Title Office. They will return it to you once final registration has occurred.
- If in the future your financial institution requires that our office validate your documents, or you require additional copies or certified copies, we reserve the right to charge a fee for this service.
- If you wish, you can look at the Power of Attorney Act on the Internet. Search on “Power of Attorney Act British Columbia” and make sure you are reviewing the latest Act amended on September 1, 2011. The Act sets out duties of an attorney (section 19), powers (section 20), liability of attorney (section 22), payment of expenses (section 24), resignation of attorney (section 25), and ending attorney authority (section 29), which includes end of marriage or a marriage-like relationship.
- If your POA predates September 1, 2011, it has been grandfathered and is still effective without amendment.
- If you have property outside of British Columbia, you should consider whether you need a Power of Attorney made in compliance with the laws of the other jurisdiction.
- If you have any questions regarding your POA, please contact our office.
Signature of Attorney
- All signatures must be in black ink.
- Before your Attorney can exercise the authority under the POA, the Attorney must sign the signature page of the POA (only for those POAs signed after September 1, 2011). The signature page must be signed in accordance with the instructions noted on the signature page and detailed here.
The Attorney’s signature on the signature page of the POA should be witnessed by a lawyer or notary public in British Columbia so that it can be used in the Land Title Office in BC, if necessary. If your Attorney lives outside of British Columbia, we strongly recommend they wait until they come to British Columbia to have the signature page signed and witnessed. If this is not convenient for your Attorney, please contact our office, as there are additional requirements and documentation needed if signed outside of British Columbia or in a remote BC location without a lawyer or notary.
- The Statutory Declaration attached to your POA, which states your Attorney is 19 years of age, only needs to be signed if your Attorney is to use the POA in the British Columbia Land Title Office on your behalf. The POA is completely effective for non-Land Title purposes even if this Statutory Declaration is not signed (provided the signature pages of your POAs are duly signed and properly witnessed).
The Statutory Declaration should be signed before a lawyer or notary public in British Columbia. If the Statutory Declaration is to be made outside British Columbia, please contact us for the requirements.
- If we have prepared your POA and your Attorney lives in Nanaimo or comes to Nanaimo to visit, you may contact our office to set up an appointment if you wish us to witness the Statutory Declaration and the signature pages. There will be no charge involved with this service if we prepared the POA document.
- If you want us to prepare additional documentation for you for out-of-province Attorneys, we may charge you an additional fee.