Attorney Gifting Limits and Compensation in BC

Two questions land an otherwise well-meaning attorney in trouble faster than any others in BC: "Can I keep giving the grandkids their usual birthday cheques out of Mom's account?" and "Can I pay myself for all this work?" Both have specific legal answers, and getting them wrong looks exactly like financial abuse to a bank or the Public Guardian and Trustee (PGT).

Here's what an attorney can and can't do on gifts and compensation.

The default rule: an attorney benefits no one but the adult

Start from the baseline. An attorney acting under an Enduring Power of Attorney (EPoA) owes strict fiduciary duties: act honestly, in good faith, and solely in the adult's best interests. By default, that means no personal benefit and no gifts to anyone — the money exists to serve the adult, full stop.

Everything below is an exception to that default, and exceptions only apply if the document and the statutory caps allow them.

The gifting cap: the lesser of 10% of income or $5,000

Many people want an attorney to continue the adult's normal generosity — charitable donations the adult always made, birthday gifts to grandchildren, and the like. BC permits this, but within limits.

If the EPoA permits gifts, an attorney may make gifts and loans up to the lesser of 10% of the adult's taxable income or $5,000 per year — unless the document expressly says otherwise. So:

• If the adult's taxable income is $30,000, 10% is $3,000 — that's the ceiling (it's lower than $5,000).
• If the adult's taxable income is $80,000, 10% is $8,000 — but the $5,000 cap wins, so $5,000 is the ceiling.

To go beyond that, the EPoA itself must authorize larger gifts explicitly. And even permitted gifts must be consistent with what the adult would have wanted and must not jeopardize the adult's own care. An attorney who "gifts" beyond the cap without authority can be ordered to repay it.

A practical rule: if a gift benefits the attorney, their family, or anyone other than the adult, and it isn't clearly authorized and within the cap, don't make it. When in doubt, preserve the money.

Can an attorney be paid in BC?

Only if the EPoA says so. In BC an attorney may be compensated only if the EPoA explicitly authorizes compensation — and ideally states the rate. Silence means the attorney works unpaid.

This trips up families constantly. An adult child spends dozens of hours managing a parent's finances and reasonably feels they should be paid — but if the document doesn't authorize compensation, quietly drawing a "fee" from the adult's account is a breach of duty, not a wage. To a reviewing bank or the PGT, an unauthorized payment to the attorney is indistinguishable from theft.

If you want your attorney to be paid, build it into the EPoA when you draft it: state that the attorney is entitled to reasonable compensation, and specify the rate or basis. Deciding this up front avoids both an unpaid, resentful attorney and an attorney who pays themselves into a fiduciary breach.

Why banks and the PGT watch this so closely

BC financial institutions are alert to elder financial abuse and will freeze accounts or refuse transactions when something looks off. Unexplained gifts, round-number transfers to the attorney, or "loans" to family members are exactly the patterns that trigger a compliance review.

The PGT is the backstop: anyone can report concerns, and the PGT can investigate an attorney's conduct and apply to court. An attorney who has stayed within the gifting cap, taken only authorized compensation, and kept clean records has nothing to fear from that scrutiny. An attorney who improvised does.

How to stay on the right side of the line

• Keep gifts within the cap (lesser of 10% of taxable income or $5,000/year) unless the EPoA expressly authorizes more, and only make gifts the adult would have made.
• Don't pay yourself unless the EPoA authorizes compensation — and if it does, follow the stated rate.
• Never co-mingle the adult's money with your own; keep assets strictly separate.
• Document everything — every gift, every payment, with dates and reasons — so you can account to the PGT or a court if asked.
• Decide these questions when drafting, not after the adult loses capacity, when the document can no longer be changed.

The clean way to handle both gifting and compensation is to spell them out in the EPoA before it's signed. Our British Columbia Power of Attorney Kit covers the exact clauses for authorizing (or restricting) gifts and compensation, plus a transaction log built to keep an attorney audit-ready. Handle these two questions properly and you protect both the adult's money and the attorney's good name.

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