# Can a letter temporarily delegate POA authority?



## Eclectic12 (Oct 20, 2010)

My co-worker and his sister have POA for their mother, who is not up to making decisions. His sister because she is ten minutes away while he is six hours away, has taken care of following up with the nursing home for changes in medication etc. until recently.

She has major surgery that will likely mean she can't do anything for about three or four months. What she has described so far to him can be handled by phone. 

The issue is he has a trip already booked that is out of country where cell phone coverage is not likely to be great.


His brother has volunteered to step in for the ten days of the trip. The issue is that the POA sister and the brother willing to help are under the impression that a court appearance is the only way to delegate POA authority. They don't think this can happen in time so they are strongly recommending he cancel his trip.


His question is whether he can write up a letter delegating POA authority so that the nursing home staff will talk to his brother, should he not be available. Or is this something that does require a judge?


Thoughts?


Cheers


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## birdman (Feb 12, 2013)

Powers of Attorney are normally prepared by a lawyer and not a judge. However, if the grantor of the attorney is not capable of providing one then I would expect it would have to go before a judge. Regardless, I would think the first step would be explaining the situation to the nursing home and see if they would be ok with the brother stepping in for the time in case of emergency. They would probably say "no" but I would think they may have some alternative if it was just medicines and easy things. If it was financial perhaps the brother could simply pay the bills and collect from the attorney later. I'm sure the nursing homes run into this quite regularly and have a way to deal with things if they cannot contact the attorney.


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## OnlyMyOpinion (Sep 1, 2013)

Not clear why sister couldn't also 'handle by phone' even though she has just had surgery? Does she expect to be not capable as a result of the procedure, or do they feel someone needs to be attending the home?


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## Mukhang pera (Feb 26, 2016)

Eclectic12 said:


> My co-worker and his sister have POA for their mother, who is not up to making decisions.
> 
> His question is whether he can write up a letter delegating POA authority so that the nursing home staff will talk to his brother, should he not be available. Or is this something that does require a judge?
> 
> ...


A person holding a POA cannot "delegate" the power to a third party. In ordinary circumstances, the grantor of the power (here, the mother) could grant a POA to some new party. However, you mention that she "is not up to making decisions", which suggests she might now lack mental capacity to grant a POA. That also suggests that, unless the existing POA is expressed as being an "enduring" power, that will survive mental incompetence, it can no longer be used; it is spent.

Where there no longer exists an effective POA and the grantor is no longer capable of granting a fresh POA, the usual procedure is to apply to the court (in B.C. under the Patients Property Act) for an order appointing a close relative or friend as committee of the person, the estate, or both. Failing a suitable applicant, the matter will fall to the Public Guardian and Trustee (current B.C. terminology). 

The court has no power to "delegate POA authority". It can appoint a committee.


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## AltaRed (Jun 8, 2009)

^ +1 

MP has it described correctly. Firstly, is the POA an Enduring POA? If not, the existing POA is no longer valid. Secondly, POA's cannot be delegated.

Another question: If it is an Enduring POA, is it worded as both individuals have to jointly make decisions? Or is it an either or? Some Enduring POAs name Person A, and then an alternate Person B if Person A cannot, or is not capable, of making a decision. It wil depend on specific wording.  The best Enduring POAs is to name one person and then an alternate.


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## Eclectic12 (Oct 20, 2010)

OnlyMyOpinion said:


> Not clear why sister couldn't also 'handle by phone' even though she has just had surgery? Does she expect to be not capable as a result of the procedure, or do they feel someone needs to be attending the home?


It is major procedure so I suspect she thinks she won't be coherent and/or have the energy. I will see if I can find out.


Cheers


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## Eclectic12 (Oct 20, 2010)

AltaRed said:


> ... MP has it described correctly. Firstly, is the POA an Enduring POA? If not, the existing POA is no longer valid. Secondly, POA's cannot be delegated.


If it is not ... then the nursing home is accepting instructions when they shouldn't. 




AltaRed said:


> ... Another question: If it is an Enduring POA, is it worded as both individuals have to jointly make decisions? Or is it an either or? Some Enduring POAs name Person A, and then an alternate Person B if Person A cannot, or is not capable, of making a decision. It wil depend on specific wording. The best Enduring POAs is to name one person and then an alternate.


From the description, stuff like changes in medication are being done by her alone. Financial changes are described as two signatures.


Good questions to ask.


Cheers


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## twa2w (Mar 5, 2016)

Actually a poa deals with financial matters only. Most provinces support another document which goes by various names., personal directive, poa for personal care, living will etc. In the absence of this document, most doctors, nursing homes etc, are usually willing to discuss basic needs such as medication changes etc with closest relatives ie spouse or children.
If, as I suspect, there is no formal poa for personal care, the two children who are known to the nursing home should advise them of the situation and tell them the third child can be consulted for basic needs in their absence. The staff will quickly let them know if this is an issue.


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## AltaRed (Jun 8, 2009)

^+1 Good point indeed! Totally escaped my mind. 

These days, when people are seeking POA's, the Notary and/or Lawyer will often advise doing a Personal Directive at the same time. Many older folks don't have these if they have not updated POAs and/or Wills for a long time. It was fortunate after my father died in 1993 that my bro and I got our mother to update her affairs including Enduring POA and Personal Directive. It makes life much easier on adult children.


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## Eclectic12 (Oct 20, 2010)

Interesting ... more questions to ask.
No feedback yet on whether the POA is an enduring one or not.


My co-worker said to pass on his thanks.


Cheers


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## Mukhang pera (Feb 26, 2016)

twa2w said:


> Actually a poa deals with financial matters only. Most provinces support another document which goes by various names., personal directive, poa for personal care, living will etc. In the absence of this document, most doctors, nursing homes etc, are usually willing to discuss basic needs such as medication changes etc with closest relatives ie spouse or children.
> If, as I suspect, there is no formal poa for personal care, the two children who are known to the nursing home should advise them of the situation and tell them the third child can be consulted for basic needs in their absence. The staff will quickly let them know if this is an issue.


twa2w has a valid point, although I think I would stop short of saying that a poa deals with financial matters only. It can be drafted to be so circumscribed, but it otherwise usually extends to any business and legal matters, not only those with financial implications. 

In B.C., the other document to which twa2w refers is known as a "representation agreement" and is most often used in the health care context. Here are a couple of passages from the precedent I keep on my computer, which will give some idea of what these things look like:

6. AUTHORITY OF REPRESENTATIVE

(See Note 5 – what a Representative may and may not do)

Pursuant to section 9(1)(a) of the Representation Agreement Act, I authorize my Representative to do anything that the Representative considers necessary in relation to my personal care and health care. 

7. INSTRUCTIONS OR WISHES (OPTIONAL)

(See Note 6 – consultation with a health care provider)

The following are my instructions or wishes with respect to decisions that will be made within the areas of authority given to my Representative under this Representation Agreement:


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## twa2w (Mar 5, 2016)

Yes mukhang is right, a poa does extend to business and legal matters of course. A single document may be used for both poa and personal care poa as well but this is rare.


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## twa2w (Mar 5, 2016)

Oh and thanks mukhang, I wasn't aware of the term in bc for the personal care document.


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