Changes to Power of Attorney Act Will Provide Limited Power to Appoint Beneficiaries

Changes to the British Columbia Power of Attorney Act that come into effect on September 1, 2011, will clarify the authority of an attorney appointed under an enduring power of attorney to designate beneficiaries for the person for whom the attorney is acting.

If the person who made the enduring power of attorney becomes incapable of making his or her own decisions, the attorney may manage the incapacitated person’s affairs. The attorney may contemplate making or changing a beneficiary of a pension plan, Registered Retirement Savings Plan, Tax Free Savings Account, or insurance policy.Can the attorney do so?

Section 20 of the Power of Attorney Act will provide a limited power for an attorney under a power of attorney to make a beneficiary designation. Section 20 (5) provides:

(5) An attorney may, in an instrument other than a will,

(a) change a beneficiary designation made by the adult, if the court authorizes the change, or

(b) create a new beneficiary designation, if the designation is made in
(i) an instrument that is renewing, replacing or converting a similar instrument made by the adult, while capable, and the newly designated beneficiary is the same beneficiary that was designated in the similar instrument, or
(ii) a new instrument that is not renewing, replacing or converting a similar instrument made by the adult, while capable, and the newly designated beneficiary is the adult's estate.

I stress the limited nature of the power. Essentially, this provision allows an attorney to maintain the same beneficiaries as those appointed by the person for whom the attorney is acting. For example, if the person who appointed the attorney had a Registered Retirement Savings Plan with a designated beneficiary, and the attorney transfers the funds to a different plan, the attorney may designate the same beneficiary. But if the attorney wishes to change the beneficiary, he or she must first apply for authorization from the Supreme Court of British Columbia.

If there is no named beneficiary, then the attorney may designate the estate of the person for whom the attorney is acting, in which case the asset will ultimately be distributed to the beneficiaries of that person's will.

The Power of Attorney Act will also contain an express provision in section 21 that the attorney may not make or change a will on behalf of the person for whom he or she is acting.