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Understanding the process of naming a power of attorney

June 10, 2020/in Power of Attorney /by gartonandharris

Many people understand the importance of naming someone to take care of affairs after they pass away. But, what if an individual is still alive but unable to make decisions? In these cases, having a power of attorney named in accordance with British Columbia estate law can make a significant difference. Setting up a power of attorney can be quite easy, and is often done as part of the overall estate planning process.

Issues of incapacity, guardianship and powers of attorney often come up when someone visits a lawyer to draft a will or prepare a trust. Ideally, advice on all these issues comes from someone who is local, specialized in this field, and understands provincial estate law. The attorney will be able to explain the different types of powers of attorney, and the steps which can be taken to prevent abuse of this critical role later on.

There are two types of powers of attorney: limited and general. Limited is named when there is a particular task for which someone wishes to designate another to undertake; for example, signing off on a property sale when they are out of town. A general power of attorney provides a much larger scope of rights and responsibilities. In both cases, but particularly for general power of attorney, picking the right person or people for this role is critical.

When setting up a power of attorney, your British Columbia lawyer will ask if you want a separate person responsible for medical decisions and financial decisions. This is typically the best practice, particularly if there is no spouse involved. Issues like this are important to explore with a lawyer to find the best option and ensure paperwork is properly completed.

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Understanding special, limited and durable power of attorney

March 4, 2020/in Power of Attorney /by gartonandharris

Most individuals recognize the importance of naming someone to handle matters on their behalf should they be unable to do so themselves. But does a power of attorney really need to be a single person given permission to access all financial management decisions? For British Columbia families or individuals looking to have another person take on individual tasks, a special power of attorney may be useful to explore.

A special power of attorney (POA) is an individual who is able to handle a particular issue or issues on another person’s behalf. This differs from a general power of attorney, a designation which authorizes someone to make a wide range of decisions when a person is unable to do so. For example, one might name a spouse as a special POA in order to authorize him or her to sign documents in his or her partner’s absence. This would be considered a one-time special POA.

Special POAs can also be given ongoing permission to handle a particular matter or matters. Those who wish to name a power of attorney for all matters until the end of their lifetime could consider a durable power of attorney. A limited power of attorney is also an option for those who wish for it to take effect if and when a certain event occurs. 

Indeed, power of attorney options can be far more extensive than just the naming of one person to handle things if someone becomes incapacitated. While this is one of the more common uses of this legal authorization, British Columbia individuals have multiple options available as they seek to plan their futures and designate responsibilities. A lawyer in the province can help to clarify all options and put together a legally binding plan.

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The difference between a power of attorney and an executor

February 18, 2020/in Power of Attorney /by gartonandharris

Many people are aware that they need to name certain individuals to care for themselves and their property should they become incapacitated or pass away. What they may not quite understand is that these two scenarios actually require different types of planning and the naming of distinct types of caretakers. Knowing the difference between a power of attorney and and executor is critical for British Columbia families seeking to plan for the future.

Power of attorney gives an individual or individuals the right to act on a person’s behalf if that individual is unable to do so. People often will name one power of attorney for health and care, and another for finances. These jobs can both be done by the same person, or in some cases, co-powers of attorney are named as a check and balance for important decisions.

Importantly, a power of attorney is only able to act on someone’s behalf while the person granting the power is still alive; once the individual passes away, a will takes over and the named executor is given these responsibilities. This typically includes making funeral arrangements, deciding on burial or cremation, and dividing property. These decisions can be clarified in an individual’s will, or can be left to the executor for the final decision.

There are other reasons a power of attorney (POA) may be revoked besides death. This includes the person who named the POA entering bankruptcy or a court decision to have an administer handle affairs. Those who have questions or concerns about POA issues in their family should reach out to a British Columbia lawyer for answers and options.

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Can power of attorney documents safeguard beloved pets?

January 22, 2020/in Power of Attorney /by gartonandharris

Pet owners take many steps to make sure their pets are cared for, especially if the owner has to leave town or can otherwise not care for them. While these short breaks are often planned for, many British Columbia pet owners do not think to put safeguards in place for their pets should they become incapacitated. Power of attorney documents, living trusts, and other preparation can prevent confusion about who should care for a pet in the case the owner is no longer capable of doing so.

Pets are legally considered property. When someone becomes incapacitated, their power of attorney documents designate who will become responsible for their property, including pets. Without this documentation, a legal process may be needed to determine who will take on guardianship of one’s estate, including who will be responsible for pets. Either way, the person with guardianship will have the latitude to make decisions, which may mean they could give the pet away if they feel it is a drain on the estate.

Some owners have more specific intentions about what should happen to their furry friends if they are no longer able to care for them. In these cases, revocable living trusts can be used to set limitations on what a guardian can and cannot do. Wishes can be specific, and the designated trustee will be legally obliged to follow one’s wishes.

A combination of estate planning documents and trusts where more specific wishes are needed can help someone prepare for the future. If one is expecting their pet’s new guardian to care for them in a certain way, it is important to set aside funds to make this care possible. Other options, such as Animal Life-Care Centres, could also be considered. Anyone with questions about power of attorney rights and responsibilities should work with a British Columbia lawyer to clarify the legal options available.

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How to discuss power of attorney and estate plans with family

January 8, 2020/in Power of Attorney /by gartonandharris

When families get together, estate plans are probably the last thing most people want to discuss. It can be an emotional topic for many, and can feel quite morbid to raise during the usual holiday get-togethers. However, it is important that British Columbia individuals start these conversations with their families, so those who are named as power of attorney or executor have clarity on what is to come.

For some people, it is easier to approach these issues organically, when they naturally come up in conversation. This typically involves breaking the conversation into smaller topics and raising them when the time feels right. This works well for families who speak fairly often and candidly.

Topics that will need to be addressed varied. Medical conversations are very important, as they help a power of attorney to know how to respond in different situations according to one’s wishes. Financial plans, roles and responsibilities, and insurance are also worth discussing.

While not every person needs to be part of every discussion, it does help for messages to be consistent and clear to all children and loved ones. This will help to prevent conflict down the line, and ensure those named power of attorney are supported in even the most difficult decisions they must make. Clarifying plans and showing the legal paperwork to all involved can help clear up any ambiguity. A British Columbia estate planning lawyer can help with the creation of these documents, as well as advising on the type of planning needed to prepare for the future.

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When is it time for the power of attorney to take over?

December 12, 2019/in Power of Attorney /by gartonandharris

When someone is no longer able to care for their own financial well-being, a designated individual takes over. The financial power of attorney is an important tool to help British Columbia seniors and their families ensure finances are taken care of even if capacity diminishes. But, deciding when it is appropriate to turn control of finances wholly or partially over to the power of attorney can be a difficult balance, especially for those who value their independence. Experts recommend looking for certain signs to determine if the time is right to enact a power of attorney.

With the large aging population in Canada, a growing number of children will soon take on the role of caring for their parents’ finances. Signs that enacting a power of attorney may be necessary include missed bills and confusion about finances. This is a delicate subject for many, so being gentle in broaching the subject and building a support team that includes third-party legal and financial advisors is a good idea.

Being prepared to take on the role of power of attorney is important. This includes having all the information about expenses, accounts, debts, income and taxes. This information is clearly quite sensitive, so it is important that the person selected be implicitly trusted and fairly knowledgeable about financial issues.

Selecting a power of attorney and being transparent about finances in advance can be extremely helpful for families. This will make the transition smoother and clarify expectations so the individual in that role is not left with uncertainty. Legal advice early on, during the transition, and in issues that emerge after, can be sought from a British Columbia estate lawyer.

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Preventing power of attorney problems at the bank

September 18, 2019/in Power of Attorney /by gartonandharris

Individuals who choose someone to act on their behalf want to avoid potential horror stories at all costs. British Columbia residents who are choosing someone to act on a power of attorney should be mindful of what it takes to do the job. One of the issues they could come up against is whether a bank will trust that individual since it is incumbent upon banks to safeguard people’s finances.

Banks have the power to reject a power of attorney. They may do this for several reasons including if the document is outdated, if the document isn’t clear or if the document doesn’t conform to the bank’s policies. Banks have also refused a power of attorney because they had never met the person acting on it, the person with the bank account didn’t sign internal bank document or a parent wasn’t able to physically get to the bank to notify the institution that he or she had authorized a child to act on a power of attorney.

If a bank does refuse a power of attorney, there are a few things a person can do. Getting in touch with a lawyer is the first wise idea. Calling the local ombudsman might be another. There is an Ombudsman for banking services and investments in various areas of the province.

When there are problems with banks and a power of attorney, a British Columbia lawyer may be able to step in and mitigate the issue(s). There may be a simple solution with which a lawyer may be able to help such as an issue of capacity. A lawyer may be able to intervene before the issue escalates.  

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Common sense should accompany a power of attorney

August 19, 2019/in Power of Attorney /by gartonandharris

Fraud has long been associated with some aspects of estate planning. British Columbia residents who are planning their estates and deciding on someone to look after their power of attorney should take the time to make a prudent decision and choose someone they trust implicitly. A power of attorney is an extremely potent document and the person chosen to act on someone else’s behalf, should the person be unable to do so, needs to be someone who can manage a grantor’s financial affairs responsibly.

Financial institutions need to ensure the person who is acting on a power of attorney actually has the authority to do so. Banks have the right to refuse a power of attorney for a number of reasons: the document may be outdated, could be unclear or doesn’t conform to the bank’s policies. They have the right to question any circumstances they believe to appear suspicious.

Banks may ask that a grantor of a power of attorney get a capacity assessment. In other words, they want to make sure the grantor was of sound mind when the document was created. Having legal advice when creating such a document is essential since having a power of attorney that is in limbo can create undue problems for an individual’s estate. 

British Columbia residents should create a power of attorney when they are still of sound mind to do so. A lawyer can assist clients in creating a document that will hold up legally. A lawyer can also work with a client to update the document — and other estate planning documents — as his or her life changes.

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Power of attorney: Common sense should prevail

April 30, 2019/in Power of Attorney /by gartonandharris

Canadians who choose someone to act on their behalf financially when they can no longer do so need to make the choice wisely. In choosing a person to act on a power of attorney, British Columbia residents will want to make sure the person is trustworthy and has some financial common sense. Fraud is a reality in some situations, so it’s important to give this power wisely.

When it comes to banking institutions, they want to know if a person acting on another’s behalf has the authority to do so. Powers of attorney can actually be refused by banks if documents presented are out of date, aren’t clear or don’t conform to banking policies. So, these documents must be kept up to date. Experts say when it comes to a power of attorney, banks should operate on a balance of caution and common sense.

When powers of attorney are rejected, significant problems can ensue, leaving a testator’s affairs in limbo. Even though banks may fear fraud in some instances, there should be real and definitive reasons for not accepting a power of attorney. Most of these issues can be thwarted by testators and family members and having a power of attorney drawn up at an age when the testator’s mental capacity is not likely to be in question.

A British Columbia lawyer can assist a client in drawing up a power of attorney early on during estate planning. In this case, a lawyer would have time to fix any issues with the document that may arise at financial institutions. With a power of attorney drawn up earlier in a client’s life, there is less likely to be pushback from financial institutions. 

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Power of attorney: It’s a matter of trust

March 20, 2019/in Power of Attorney /by gartonandharris

There are things people can do legally to make sure their financial affairs continue to be in order should they no longer be able to take care of things on their own. A power of attorney is a document that gives one or more people the green light to manage money and/or property on someone else’s behalf. There are two types of powers of attorney in British Columbia and the rest of the country: general or enduring.

Since the person(s) named to act on a power of attorney document is given the green light to make many different decisions it is extremely important this person(s) be chosen with the utmost care. A testator must indicate if the person should have limited authority and to what extent. The more comprehensive a power of attorney document is, the better for all involved. One thing a person acting on a power of attorney can’t do is make changes to an existing will or draft a will on behalf of someone.

Powers of attorney for making health care decisions are different from financial powers of attorney and it’s important to understand the distinction. There are risks with designating someone to act on a power of attorney. There is much trust involved in the process, but as long as an individual can act on his or her own behalf, a power of attorney document need not come into play.

A British Columbia lawyer can help a client to have a better understanding of how a power of attorney can be beneficial and those things to consider before making a decision about choosing a person to act on the document. A lawyer will ensure any documents adhere to the law. Clients need to know the options available to them and a lawyer can be that source of enlightenment when it comes to estate planning documents.

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