Enduring Power of Attorney in BC: From Signing to Stepping In

A retired couple in Nanaimo keep a blue folder on the shelf above their desk with a single word on the tab: "If." She is 67 and spent her career keeping the books for a school district, so the household accounts have always been hers. He is 69 and happy to leave it that way. Last month their son drove over from Surrey on a Saturday to go through the folder with them, coffee mugs pushing the paperwork to the edges of the table. The part that caught him off guard was not the choice of attorney, which everyone expected would be him. It was learning that he would have to sign the document himself, in front of witnesses, before it would ever let him do anything.

That step is one of several features that make British Columbia's enduring power of attorney its own creature. The rules sit in Part 2 of the Power of Attorney Act, and they differ in real ways from those of Ontario or Alberta. If you are comparing provinces, our overview of powers of attorney for property in Canada sets them side by side. What follows is BC only.

Two statements the document cannot skip #

Section 14 requires an adult making an enduring power of attorney to state two things in it. First, whether the attorney may exercise authority while the adult is still capable, or only while the adult is incapable of making decisions about their financial affairs. Second, that the attorney's authority continues despite the adult's incapability.^[NaN]

The first statement is a genuine choice, and couples like the one in Nanaimo often weigh it differently. Letting the attorney act right away can help with errands during a long trip or a hospital stay. Limiting the attorney to periods of incapability keeps control in your own hands for longer. Our piece on enduring versus springing powers of attorney looks at that trade-off more closely.

As to reach, s. 13(1) lets the document authorize the attorney to make decisions for you, or to do anything you may lawfully do through an agent in relation to your financial affairs.^[NaN]

Who can make one #

The Act defines an adult as someone who is 19 or older (s. 10), and s. 12(1) lets an adult make an enduring power of attorney unless they cannot understand its nature and consequences.^[NaN] Section 12(2) spells out what that understanding generally involves. The adult should be able to follow what they own and its rough value, the obligations they have toward their dependants, and the fact that the attorney will be able to handle their financial affairs almost as fully as they could themselves (but cannot make a will). They should also appreciate that poor management can lower the value of their business and property, that an attorney could misuse the role, and that they can revoke the document while capable.^[NaN]

Who you can name #

Section 18(1) allows three kinds of attorney: an individual, the Public Guardian and Trustee, or a financial institution authorized to carry on trust business under the Financial Institutions Act.^[NaN] The individual route has an exclusion worth knowing. Someone who provides personal care or health care services to you for pay, or who works at a facility where you live and receive that care, is generally not eligible. Under s. 18(2), that exclusion does not apply if the person is your child, parent or spouse.^[NaN]

If you name someone who is not yet an adult, s. 18(3) says they cannot act until they become one.^[NaN] And if you give the same area of authority to more than one attorney, s. 18(5) generally requires them to act unanimously unless the document provides another arrangement.^[NaN]

The signing sequence #

BC's execution rules come in two stages.

Your signature. Under s. 16(1), the enduring power of attorney must be in writing, and you sign and date it in the presence of two witnesses, who then sign in your presence.^[NaN] A single witness is enough under s. 16(4) if that witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia.^[NaN] Section 17.1(1) also recognizes an alternative witnessing process, if one has been set by regulation.^[NaN]

Who cannot witness. Section 16(6) rules out a person named as attorney; that person's spouse, child or parent; an employee or agent of a named attorney (with exceptions where the attorney is a lawyer, a notary, the Public Guardian and Trustee or a trust company); anyone who is not an adult; and anyone who cannot understand the way you communicate, unless they have interpretive help.^[NaN] In the Nanaimo family, that leaves out the son and his wife, and also the son's grown daughter, since she is the child of a named attorney.

The attorney's signature. Before using any authority, the attorney signs the document in the presence of two witnesses under s. 17(1). Section 17(2) confirms this does not have to happen in front of you or any other attorney.^[NaN]

Land. If the document will be used for dealings under the Land Title Act, s. 16(5) requires it to be executed and witnessed in line with that Act as well.^[NaN] For homeowners, this is worth raising with whoever helps with the signing.

When the authority begins #

Under s. 26(1), an enduring power of attorney takes effect on the latest of three dates: when both you and an attorney have signed it, any effective date written in it, and the date a triggering event described in it is confirmed to have happened.^[NaN] Once in place, s. 30(1) provides that the attorney's authority generally carries on if you later become incapable.^[NaN]

What the attorney owes you #

Section 19(1) sets the baseline. The attorney must generally act honestly and in good faith, use the care, diligence and skill of a reasonably prudent person, stay within the authority given by the document and the law, and keep prescribed records that you can ask to inspect and copy.^[NaN] Under s. 19(2), decisions about your finances have to be made in your best interests, taking into account your current wishes, known beliefs and values, and any directions you left in the document.^[NaN]

Pay is not automatic. Section 24(1) generally bars compensation unless the document expressly allows it and sets the amount or rate, though s. 24(2) permits reimbursement of reasonable expenses properly incurred.^[NaN]

Changing your mind and how authority ends #

While you understand the nature and consequences of doing so, s. 28(1) lets you change or revoke the document, subject to any limits it contains.^[NaN] Section 28(2) then requires written notice to each attorney, and s. 28(4) makes the change effective from the giving of that notice, or from any later date the notice sets.^[NaN]

An individual attorney's authority can also end on its own. Section 29(2) lists situations including the attorney resigning, dying, becoming incapable or going bankrupt, and, where the attorney is your spouse, your marriage or marriage-like relationship ending.^[NaN] That last one can be switched off: under s. 29(3), you can state that a spouse's authority continues whatever happens to the relationship.^[NaN] The Act also lists ways the whole document ends, including your death.^[NaN]

Before the folder goes back on the shelf #

An enduring power of attorney covers your money and property. Health and personal-care decisions in BC run through a different document, explained in our guide to representation agreements in BC. And what happens to your estate after death is the job of your will and your executor; our guides on how to write a will in BC and the BC executor's role pick up there, and the British Columbia will hub brings the provincial pieces together.

The Nanaimo couple left the Saturday session with a short to-do list: pick the witnesses, decide on the "while capable" question, and ask their son to sign in Surrey with two witnesses of his own. If your own "If" folder is still missing a will, It's Simple Will can help you write it.