What Records Must an Attorney Keep When Acting Under An Enduring Power of Attorney in British Columbia?

If you are acting as an attorney under an enduring power of attorney in British Columbia you are now required under the Power of Attorney Act, and the Power of Attorney Regulation to keep financial records in respect of the person who appointed you. I previously wrote about an attorney’s duties under changes to the legislation that came into effect on September 1, 2011, here.

The Regulation sets out the types of records you need to keep if you are acting under an enduring power of attorney:

Records of attorneys
2 (1) An attorney acting under an enduring power of attorney must make a reasonable effort to determine the adult's property and liabilities as of the date on which the attorney first exercises authority on the adult's behalf, and maintain a list of that property and those liabilities.

(2) An attorney acting under an enduring power of attorney must keep the following records in relation to the period for which the attorney is acting:

(a) a current list of the adult's property and liabilities, including an estimate of their value if it is reasonable to do so;
(b) accounts and other records respecting the exercise of the attorney's authority under the enduring power of attorney;
(c) all invoices, bank statements and other records necessary to create full accounts respecting the receipt or disbursement, on behalf of the adult, of capital or income.

I have three comments.

First, this section setting out the records you must keep if acting under a power of attorney only applies to enduring powers of attorney. An enduring power of attorney is a power of attorney that continues to have effect while, or comes into effect when, the person for whom you are acting is incapable. If you have a power of attorney that is not “enduring,” one that ceases to be effective if the person who appointed you becomes incapable, then you are not required to keep all of these records.

Second, the fact that someone, perhaps one of your parents, has made an enduring power of attorney appointing you as his attorney does not trigger the record-keeping requirements. It is only when you start to act under the enduring power of attorney that you need to keep all of these records. Enduring powers of attorney are planning tools, made in case the person granting the power of attorney later becomes incapable of making his or her own financial decisions. It is often never necessary to use them, or it may only become necessary many years after they are made. But once you begin to using the enduring power of attorney, for example, by doing banking transactions for your parent, you must keep all of the records required in Section 2 of the Regulation.

Third, the Regulation does not require that the person who appointed the attorney is incapable to trigger the record-keeping requirements. The records must be made and kept whenever the attorney uses the power of attorney. For example, suppose your mother grants you an enduring power of attorney, and then, while still perfectly capable, goes to Asia on a vacation when her house is being sold. She asked you to sign the real estate documents for her as her attorney under the enduring power of attorney. If you sign for her the record-keeping requirements are triggered, even though you are only doing a specific transaction, at her request, while she is fully capacitated. In those circumstances, it would make sense for your mother, before she goes to Asia, to sign a second power of attorney that is not an enduring power of attorney. The second power of attorney would grant you the power to sign the documents needed to sell and transfer title to her house. You would then not use the enduring power of attorney, thereby avoiding the need to keep the records of all of your mother’s assets in order to assist her in selling her house.