Power of Attorney Vs. Will: Why You Need Both

Estate planning usually begins with a will, which outlines how your assets will be handled once you pass away. However, there is another critical legal tool that deserves equal attention: the Power of Attorney (POA). For residents of Kelowna and across British Columbia, having a POA in place can protect your financial and legal interests during your lifetime, especially if you become unable to manage them yourself.

What Is a Power of Attorney?

A Power of Attorney is a legal document that authorizes someone you trust to make decisions and act on your behalf in financial and legal matters. In British Columbia, there are two main types:

• General Power of Attorney: Grants broad authority but becomes invalid if you lose mental capacity.

• Enduring Power of Attorney: Continues to be valid even if you become mentally incapable, making it essential for incapacity planning.

Unlike a will, which only takes effect after death, a POA operates during your lifetime. It allows your chosen representative to pay bills, manage investments, handle property transactions, and deal with legal matters if you cannot do so yourself.

The Overlooked Document That Safeguards Your Future

Life is unpredictable. Illness, accidents, or age-related conditions can leave you unable to manage your affairs. Without a POA, your loved ones could encounter serious obstacles:

• Court applications: If you become incapable and have no POA, your family may need to apply to the BC Supreme Court for a committeeship order to manage your affairs. This process is time-consuming, costly, and emotionally draining.

• Loss of control: The court decides who will act as your committee, which may not align with your wishes.

• Financial strain: Delays in accessing funds can lead to unpaid bills, missed mortgage payments, and complications in managing investments.

By contrast, a properly drafted POA ensures someone you trust is ready to step in immediately, avoiding unnecessary stress and expense.

Legal Lessons: When There’s No Power of Attorney in Place

The case of Temoin v. Martin 2012 BCCA 250 (CanLII) highlights the serious consequences of failing to plan for incapacity. In this case, Lynn Temoin petitioned the court under the Patients Property Act for a declaration that her father, an 87-year-old man of substantial wealth, was incapable of managing his financial and personal affairs due to mental infirmity. She also sought to have herself appointed as committee of his person and an accounting firm appointed as committee of his estate.

Her father had recently revised his estate plan and will, and Ms. Temoin believed these changes were influenced by his diminished capacity and pressure from his spouse. However, under the Patients Property Act, a declaration of incapacity requires two medical affidavits confirming incompetence. Mr. Martin refused to attend medical examinations, leaving Ms. Temoin unable to meet this requirement. She applied for a court order compelling him to undergo two psychiatric assessments.

The Supreme Court of British Columbia dismissed her application, and the Court of Appeal upheld that decision. The court emphasized three key principles:

1. Presumption of capacity: Adults are presumed capable unless proven otherwise.

2. No automatic authority: Without a valid Power of Attorney, family members have no legal right to manage affairs, even if incapacity seems obvious.

3. Limited court intervention: The court cannot override statutory requirements without strong evidence. In this case, the evidence was insufficient to justify compelling medical exams, leaving the family powerless to protect assets or make decisions.

This case demonstrates that when incapacity strikes and no Power of Attorney exists, families may face lengthy, expensive, and uncertain court proceedings. Sometimes, they may fail entirely, as was the case in as in Temoin v. Martin. A properly drafted Enduring Power of Attorney avoids this risk by granting trusted individuals the authority to act immediately, without court involvement.

How a Power of Attorney Complements Your Will

For Kelowna residents, incorporating a POA into your estate plan offers several advantages:

• Immediate authority: Your attorney can act without waiting for court approval.

• Customized control: You decide the scope of authority—whether broad or limited to specific tasks.

• Peace of mind: Ensures your financial obligations are met and your assets protected during incapacity.

• Avoids committeeship: Saves your family from lengthy court proceedings and legal fees.

How Heritage Law Group Can Help

At Heritage Law Group, we understand that planning for incapacity is just as important as planning for death. Our wills and estate law services include:

• Drafting Enduring Powers of Attorney tailored to your needs.

• Advising on Representation Agreements for health care decisions.

• Creating comprehensive estate plans that integrate your will, POA, and other essential documents.

Our Kelowna-based team provides personalized guidance to ensure your wishes are respected and your loved ones are protected.

Take Action Today

If you already have a will, that’s a great start, but it’s only part of the plan. Include a Power of Attorney for full protection. A Power of Attorney is the missing piece that safeguards your interests during your lifetime. Contact Heritage Law Group to discuss how we can help you create a POA that reflects your values and provides peace of mind for you and your family.