Free form of Power of Attorney falls short
- Responding to a reader’s question about a free form of enduring power of attorney and explaining how that ffree form falls short.
A reader – I’ll call him Peter – has asked for help with completing a form of enduring power of attorney he freely obtained online from the government of British Columbia.
Here is a link to the form:
He explained that he wants an enduring power of attorney so that his wife will have an easier time with their affairs after he’s gone.
The form comes with an instruction sheet which Peter followed for signing it with two witnesses at the end of the document.
There is a section within the form entitled “Certification for Land Title Purposes” requiring another signature from Peter that must be witnessed by a lawyer or notary public. Without that part of the form completed, the power of attorney document cannot be used to transfer a house, condo or other property registered in our land title system.
Peter asked if there is a standard fee that a lawyer or notary would charge for witnessing that part of the form.
He also noted that he and his wife’s home is owned jointly, so he didn’t believe that section would be required.
Thank you so much, Peter, for your questions.
Peter is on the right track, getting his affairs in order to make things easier for his wife. We should all be like Peter.
I am including myself in that, embarrassed to admit that I don’t even remember if my wife and I have made powers of attorney! If we did, it was eons ago and would not have included our children as alternates. I’m following the old adage – the shoemaker’s children go barefoot.
But Peter is a little bit misguided.
His wife won’t have any use for his power of attorney after he’s gone. The power granted in a power of attorney dies with the person who has granted it.
The person with the authority to handle Peter’s affairs after he dies will be his executor.
Peter’s bang on correct that, after he dies, his wife won’t need authority to deal with their home that is jointly owned. His wife will simply need to file Peter’s death certificate with the Land Title Office, which can be done online, and Peter’s name will disappear from title leaving his wife as the sole owner.
But it is really quite important that Peter’s power of attorney include the “Certification for Land Title Purposes” section because his wife might require authority to deal with their home while Peter is alive.
The key reason for having an enduring power of attorney is to allow for your financial and property affairs to be dealt with after you have lost the cognitive capacity to handle them yourself.
The word “enduring” doesn’t mean the authority endures after your death. It means it endures after you’ve lost cognitive capacity.
The part of the document that covers this is entitled “Continued Authority” which reads “My Attorney may exercise the authority granted by this Enduring Power of Attorney while I am capable of making decisions about my financial affairs, and this authority continues despite my incapability to make those types of decisions.”
Absent an effective power of attorney that grants authority to deal with their home, Peter’s wife will have no authority to refinance or sell their home if Peter loses cognitive capacity and she needs the extra funds or needs to downsize.
But even if Peter pays a lawyer or notary public to complete the “Certification for Land Title Purposes” section of the form, it’s unlikely to be of any help.
Section 56(1) of the Land Title Act says that unless there is a term within the power of attorney that expressly excludes the effect of the section, a power of attorney is not valid 3 years after the date of its execution.
The government form doesn’t include such a term.
And I know that there are banks and financial institutions that will not honour self-made powers of attorney, even if the government form is used.
Unfortunately, the government attempt to provide an effective, free form of power of attorney to help British Columbians arrange their affairs without incurring a bunch of legal expense has fallen short. I salute their efforts, but more must be done.
A few added comments for anyone in Peter’s circumstances:
- Please have your wife prepare a power of attorney as well so that you can manage her affairs if she loses cognitive capacity,
- Name alternates, so that someone can manage your affairs after the first of you and your wife dies, and
- Ensure to discuss with your legal advisor additional, custom terms (there are several) such as allowing for transfers to yourself that otherwise would not be permitted under a basic form of power of attorney.
