Powers of attorney are governed by the law of agency, a branch of common law concerned with the delegation of power from one person, generally called the principal, to another, called an agent.
When a person becomes incapacitated, the government or the court often steps in and appoints someone to represent and take any legal decisions that the person would have to take. One of the methods to avoid government or court intervention, and the appointment of a stranger or a bureaucrat, is the use of a power of attorney.
A power of attorney is a written document stating that one person gives to another the full power and authority to represent him or her. It must be signed by the principal (also called a "donor") and, under some circumstances, by the attorney.
The rules regulating powers of attorneys tend to vary significantly from province to province.
For example, it is customary in some provinces to refer to the person giving the power of attorney as the "principal"; whereas other provinces refer to the "donor".
The person receiving and potentially exercising the power of attorney may be called the "attorney", "attorney in fact", "agent" or "donee."
In Quebec, the power of attorney is known as the "mandate" (although formerly a procuration), and is covered in great detail in the Civil Code.
Some provinces require two witnesses before a power of attorney can be valid; other provinces require that the power of attorney be registered in the courthouse.
Some provinces exclude certain persons from acting as attorney to a power of attorney while others require special government forms to be used.
Also, some provinces do not recognize the "springing power of attorney."
BC was considering doing away with enduring powers of attorney altogether but now apears to be wavering on that.
For these reasons, it is not possible to give any specific outline of powers of attorney in Canada in this web document. Consequently, the following should be considered as general legal information which must be supplemented by reference to power of attorney legislation in each province or to a legal professional, before signing it.
A general power of attorney gives the attorney all powers to act on your behalf.
A special or limited power of attorney gives the attorney only limited authority, restricted to certain duties such as to "sign, on my behalf, any offers to purchase my property at 56 Roberval Street, Baie-Comeau, Quebec during that period of time when I am on overseas travel" or "to exercise my right to vote at the 1997 annual meeting of BC strata corporation 5551212."
Because powers of attorney are closely related to the capacity of the principal, they are automatically revoked if the principal were to become incapacitated (for example, by death, mental incapacity or bankruptcy of the principal). However, some powers of attorney are designed precisely to survive the incapacity of the principal and are called a "durable" or "enduring" power of attorney.
A variation of a durable power of attorney is the "springing power of attorney" which "springs" to life when a certain event, specified in the power of attorney, has taken place.
An example of these are medical situations where a spouse is given the power of attorney to make decisions regarding the principal's life support in a situation where the principal cannot express themselves; the POA can be stated to spring when a doctor certifies that the donor can no longer manage his or her affairs.
Generally, powers of attorneys can be revoked by destroying the original, although it would be wise to advise the attorney and all third parties that the power has been destroyed. If a power is given for consideration, it may be difficult to revoke it unilaterally.
Agents or attorneys do not have to accept the power.
By accepting a power of attorney, an attorney agrees to carefully make decisions on behalf of the principal. They can be sued for mistakes they make.
If an attorney exceeds the power given, and a third party was aware of the limitations, the principal cannot be held responsible for those acts. If you are dealing with any person on the basis of a power of attorney, insist on reading the power of attorney and noting any limitations which might be contained in it.
- Although there is no legal requirement for a power of attorney to be type-written, this is advisable. Powers of attorney are very powerful documents so legibility should not cloud their intent.
- Use clear language. Powers of attorney are interpreted strictly by the courts so if the language so if there is any doubt, a power of attorney may be interpreted by a court to include lesser powers than originally intended by the principal.
- Make sure to clearly specify in the power of attorney the limitation, if any, that you wish to impose or clearly set out at what date, or upon the occurrence of what event, the power of attorney kicks in or expires.
- Identify the principal and attorney clearly including their home address to ensure proper identification or any relationship with you (eg. "spouse").
I, (insert complete name), of (insert city of residence), (insert occupation), appoint (insert name of person to exercise the power of attorney) of (insert city of residence of person appointed to be attorney) to be my attorney, to do on my behalf anything that I can lawfully do by an attorney.
This power of attorney endures and may be exercised during any legal incapacity on my part.
Any previous power of attorney or any delegation of a previous power of attorney is hereby revoked.
(Insert date and have signed by the attorney and principal in the presence of witnesses if required by provincial legislation.)
Because of the discrepancies in provincial laws, have your draft power of attorney reviewed by a lawyer before signing it!