Joint Tenancy's accessory, a Power of Attorney.

It is common for couples to purchase a home jointly with a spouse (via marriage or common-law) or even a close friend. One of the main advantages of joint tenancy is that it provides each other with a right of survivorship on death, saving approximately 1.6% on probate fees if one of the owners die, and keeping the home out of probate and away from potential wills variation actions.

While joint tenancy may simplify matters at death, in the case of one of the owners becoming incapacitated joint tenancy could potentially turn into a curse. Under a joint tenancy, both parties are required to consent to sell the home, file a mortgage against the home, and in some cases even refinance a mortgage. If a couple has not made other arrangements, the capable spouse may have to apply to court for a committeeship which will require the involvement of the public trustee and incur legal costs in an already dire situation.

To avoid this, a couple who is purchasing a home may look to grant each other an enduring Power of Attorney so that they may each have authority to sign, if necessary, on behalf of each other. They may even want a close friend or an adult child as a backup, in case something happened to both spouse simultaneously. The Power of Attorney could be broad so as to provide each other with total access to each others' finances or narrow and applicable for only transactions related to the home. As a Lawyer, I may even receive instructions from a client to hold their Power of Attorney and only release it under certain conditions, such as after proof of incapacity is provided by a doctor.

An enduring Power of Attorney does not tend to expire, so most people will likely only need to execute one once unless there has been a change in circumstances. There is a section in the Land Title Act (s.56) that will cause a Power of Attorney over land to expire within three years, however, most Power of Attorney's contain a clause that exempts the application of that provision. However, people moving into British Columbia will want a Power of Attorney that includes the proper British Columbia references.

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