Cumbersome Witnessing Provisions of the B.C. Power of Attorney Act

One of the changes the Government of British Columbia made to enduring powers of attorney when the Power of Attorney Act was amended was to increase the formal requirements for making a valid enduring power of attorney. These changes came into effect September 1, 2011. Unfortunately, the changes to the signing and witnessing requirements have made the making a power of attorney more cumbersome, costly, with an increased risk of rendering documents ineffective.

Before September 1, 2011, only the donor, that is the person making the power of attorney, had to sign the power of attorney. For the document to be effective for land, his or her signature had to be witnessed by an “officer” under the Evidence Act, which includes lawyers and notaries public. The attorney under the power of attorney did not need to sign, although powers of attorney documents usually included a statutory declaration that the attorney was at least 19 when the power of attorney was made to satisfy the requirement of the Land Title Act that the attorney must be an adult.

Now both the person who makes the enduring power of attorney and the person he or she appoints must sign the power of attorney, and each must sign in front of two witnesses. But only one witness is required if the witness is a “lawyer” or “a member in good standing of the Society of Notaries Public of British Columbia.” Certain categories of people such as a spouse, child or parent of a person named in the power of attorney are excluded as witnesses.

The relevant sections are sections 16 and 17:

Adult must sign enduring power of attorney

16  (1) Subject to subsections (2) to (6), an enduring power of attorney must be in writing and signed and dated by

(a) the adult in the presence of 2 witnesses, and
(b) both witnesses in the presence of the adult.

(2) Subject to subsection (3), an enduring power of attorney may be signed on behalf of an adult if

(a) the adult is physically incapable of signing the enduring power of attorney,
(b) the adult is present and directs that the enduring power of attorney be signed, and
(c) the signature of the person signing the enduring power of attorney on behalf of the adult is witnessed in accordance with this section, as if that signature were the adult's signature.

(3) The following persons must not sign an enduring power of attorney on behalf of an adult:

(a) a witness to the signing of the enduring power of attorney;
(b) a person prohibited from acting as a witness under subsection (6).

(4) Only one witness is required if the witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia. 

(5) If an enduring power of attorney is to be effective for the purposes of the Land Title Act, the enduring power of attorney must be executed and witnessed in accordance with the Land Title Act. 

(6) The following persons must not act as a witness to the signing of an enduring power of attorney:

(a) a person named in the enduring power of attorney as an attorney;
(b) a spouse, child or parent of a person named in the enduring power of attorney as an attorney;
(b.1) an employee or agent of a person named in the enduring power of attorney as an attorney, unless the person named as an attorney is

(i)  a lawyer,
(ii)  a member in good standing of the Society of Notaries Public of British Columbia,
(iii)  the Public Guardian and Trustee, or
(iv)  a financial institution authorized to carry on trust business under the Financial Institutions Act;

(c) a person who is not an adult;
(d) a person who does not understand the type of communication used by the adult, unless the person receives interpretive assistance to understand that type of communication.

 Attorney must sign enduring power of attorney 

17  (1) Before a person may exercise the authority of an attorney granted in an enduring power of attorney, the person must sign the enduring power of attorney in the presence of 2 witnesses. 

(2) The signing of an enduring power of attorney by an attorney is not required to be in the presence of the adult or any other attorney. 

(3) Section 16 (4) and (6) applies to witnesses of an attorney's signature and, for this purpose, the reference in section 16 (6) to the adult is to be read as a reference to the attorney. 

(4) A person named as an attorney in an enduring power of attorney who has not signed the enduring power of attorney is not required to give notice of any kind that the person is unwilling or unable to act as an attorney. 

(5) If a person named as an attorney does not sign the enduring power of attorney, the authority of any other attorney is not affected, unless the enduring power of attorney states otherwise.

I can see some benefit to having formal requirements for the person making the power of attorney. It is a powerful document, and can be abused. I can also see some benefit of requiring the attorney to sign it before it is effective to ensure that the named attorney does in fact agree to act. But I cannot conceive of any benefit to cumbersome witness requirements for the attorney’s signature.

One of the main reasons for making an enduring power of attorney is to allow someone to sell or otherwise deal with your real estate if you become mentally incapable of doing so yourself. Accordingly, it is usually very important that a power of attorney may be registered at a Land Title Office so that the attorney can then deal with the title.

Before registering an enduring power of attorney, the Land Title & Survey Authority needs to make sure the document is signed in accordance with the legislation. On October 10, 2012, the Director of Land Titles issued a Practice Bulletin setting out the Land Title & Survey Authority requirements for registering a power of attorney. In a nutshell, if either the person making the power of attorney, or the attorney signs in front of two witnesses, neither of whom is a British Columbia lawyer or British Columbia Notary Public, then the Land Tile & Survey Authority will require affidavits from both witnesses confirming that it was signed in their presence and that they signed in the presence of each other and of the person whose signature they are witnessing, and confirming that they are not disqualified from acting as witnesses. This means that if the attorney does not want to see a B.C. lawyer or notary to sign the enduring power of attorney, he or she may sign in front of two witnesses, but then the witnesses will have to sign an affidavit in front a lawyer or notary public if the enduring power of attorney is going to be registered. In practice, it will much simpler if both the person making the enduring power of attorney, and the attorney sign the document in front of a British Columbia lawyer or a British Columbia Notary.

In most cases, the person making the enduring power of attorney will see a lawyer or notary in B.C. in any case. But what if attorney lives outside of British Columbia? In my experience, it is quite common for a parent to name a child who lives in say Alberta, or Manitoba, as her attorney. Can the attorney go to a lawyer in another province to witness his or her signature in lieu of signing before two witnesses both of which will then have to swear affidavits of witness?

The answer is no. The Practice Bulletin says,

An EPOA [enduring power of attorney] must be signed by the attorney whose signature must be witnessed by:
 • a notary public, who is a member of the Society of Notaries Public of British Columbia, or
• a British Columbia lawyer, or
• if not witnessed by a British Columbia lawyer or British Columbia notary public, two witnesses whose signatures must be proven by affidavit of witness covering the matters noted in s. 16(6) of the Act.

I had thought that perhaps the Bulletin was overly restrictive in saying that the lawyer must be a British Columbia lawyer (as opposed to a lawyer in another province). The Power of Attorney Act just says "lawyer," in contrast to the provision referring to a member of the Society of Notaries.

Although the term “lawyer’ is not defined in the Power of Attorney Act, section 29 of the Interpretation Act defines lawyer to mean “a practising lawyer as defined in section 1 (1) of the Legal Profession Act.” The Legal Profession Act, in turn, defines “a practicing lawyer” as “a member in good standing who holds or is entitled to hold a practising certificate:” and “member” is defined as “a member of the society.” “Society” is defined to mean the Law Society of British Columbia.

The Director of Land Titles is correct in his interpretation.

This means that if the attorney lives in another province, the attorney should either arrange to sign the power of attorney in front of a British Columbia lawyer or British Columbia notary when the attorney is in British Columbia, or he or she will need to sign in front of two witnesses, who will have to complete affidavits before a lawyer or notary (the affidavit of witness may be signed before a lawyer or notary public outside of B.C.). 

I would urge the British Columbia Government to amend the Power of Attorney Act to delete the witnessing requirements for the attorney’s signature. There is no purpose for these formalities. It does not prevent abuse of a power of attorney, nor does it ensure that the attorney gets any advice concerning his or her responsibilities even if the attorney signs the documents before a lawyer or notary. It just creates an extra cost when either the attorney signs in front of a lawyer or notary, or when the witnesses swear their affidavits. I suggest the following amendments:

Delete the words “in the presence of two witnesses” in section 17(1);

Repeal subsection 17(3).