This article is intended to clear up some of the confusion and concern regarding Enduring Powers of Attorney, the new Representation Agreements and their effect on your Estate planning.

From time to time there are issues that I believe you may find affect you and it is my intention to provide you with articles or other material occasionally for your advice and assistance. I trust this will be helpful to you.

Preston

The big legal topic these days seems to be "What is happening to Powers of Attorney?" We were just getting used to Powers of Attorney as being ways we could protect ourselves in the event of disability, when suddenly we are told that Powers of Attorney are no longer valid and that something referred to as a "Representation Agreement" is taking their place. This, of course, raises the question "What is a Representation Agreement?"

I have good news for you! The sky has not fallen. Powers of Attorney still remain valid and useful and we now have the opportunity to have additional legal documents to provide for our health and medical care.

At this point a bit of history would be helpful.

Since time immemorial we have been able to delegate virtually anything to others by documents that have been generally described as "Powers of Attorney". Until 1979 the common law provided that when we became mentally incompetent, Powers of Attorney that we had granted became void or unusable because it was believed that if we had given the right to others to do things for us, we should have the right to withdraw that authority. Otherwise, upon our becoming mentally incompetent, we were at risk of others taking undue advantage of us.

Increasingly husbands and wives held title to their homes together. This created the problem that when the husband or wife became incapable of functioning mentally, the other party was powerless to sell the property short of applying for Committeeship, which is a relatively expensive proposition.

Accordingly, in 1979, the British Columbia Legislature amended the Power of Attorney Act to provide that if a Power of Attorney included the "enduring" wording, the Power of Attorney would continue to be effective, even after we became mentally incompetent.

It was generally considered that an "enduring" Power of Attorney was suitable to provide our spouse, child or other absolutely trustworthy person we appointed, with the power to handle our legal affairs and make decisions for us concerning our health and medical care. Over time, for various reasons, it came to be determined that Powers of Attorney were somehow not appropriate for decisions concerning our health or medical care and several new or amended pieces of legislation were enacted which have given rise to the new documentation which we have come to know as "Representation Agreements".

All "enduring" Powers of Attorney prepared before September 5, 2001 will continue to be valid and enforceable both in the present and in the future. "Enduring" Powers of Attorney must be incorporated into Representation Agreements made after September 5, 2001 to take care of our financial and legal affairs as well as our health and medical care. Powers of Attorney that are not "enduring" Powers of Attorney are not affected by the new legislation and will continue to be prepared and used.

As with all changes, there is both fear and mistrust of the new Representation Agreements: a period of time is required for everyone to become familiar with them and adjust to the new provisions. I expect that, ultimately, we will look back on these changes as being beneficial.

Representation Agreements are, however, somewhat complex in relation to their formalities and content and require careful legal advice. I look forward to the opportunity of assisting you in understanding and, if appropriate, preparing such documentation in the future.

Please feel free to contact me at your convenience.