Enduring Powers of Attorney Made Outside of B.C.

Nowadays it is fairly common for people to move from one province to another, or to live primarily in one province but own land in another. This is particularly true here in British Columbia which is a popular province to retire or own recreational property.

But each province has its own laws regarding incapacity and estate planning. British Columbia has its own Power of Attorney Act governing the making of enduring powers of attorney. An enduring power of attorney allows one person (referred to in our legislation as the adult) to appoint another (the attorney) to make financial decisions and deal with property. It is enduring if it says that it continues despite any incapability of the adult. It is a useful tool to plan in case the person making the power of attorney later suffers a stroke or dementia or for some other reason becomes mentally incapable of making legal and financial decisions.

What happens if someone in say Nova Scotia makes an enduring power of attorney in that province, and later becomes incapable while owning land in British Columbia? Can the person appointed under the Nova Scotia power of attorney sell the land?

Up until September 1, 2011, British Columbia law did not recognize enduring powers of attorney made outside of the province. Now, under amendments to the Power of Attorney Act and the Power of Attorney Regulation under certain circumstances an enduring power of attorney made outside of British Columbia will be a “deemed enduring power of attorney” that is effective in British Columbia.

As set out in section 4 of the Regulation, the enduring power of attorney must continue or come into effect when the person making the power of attorney is incapable of making decisions about his or her finances. It must be made by a person who was ordinarily resident outside of British Columbia in Canada, within the United States of America, the United Kingdom of Great Britain and Northern Ireland, Australia or New Zealand, when it was made. It must be validly made according to the laws in the place where the person making the enduring power of attorney was ordinarily resident and where it was made, and it must continue to be effective in the place it was made.

 

To use the enduring power of attorney in British Columbia, it must be accompanied by a certificate made by a solicitor licensed to practice law in the jurisdiction it was made in the form set out in the Regulation stating that:

(a) the power of attorney described in Part 1 of this certificate grants a power of attorney that continues to have effect while, or comes into effect when, the adult who made the power of attorney is incapable of making decisions about the adult's financial affairs, 

(b) at the time of making the power of attorney, the adult who made it was to the best of my knowledge ordinarily a resident of ......................................... [province or state, if applicable, and country], and that jurisdiction is

(i)  outside British Columbia but within Canada, or
(ii)  within the United States of America, the United Kingdom of Great Britain and Northern Ireland, Australia or New Zealand, and

(c) the power of attorney was validly made according to the laws of the jurisdiction in which

(i)  the adult who made the power of attorney was ordinarily resident, and
(ii)  the power of attorney was made.

This raises the question of when an enduring power of attorney is made outside of British Columbia. For example, if I draft an enduring power of attorney for a client, who lives in British Columbia, but signs the document in New Brunswick, is it made in British Columbia or New Brunswick? What if the client lives in New Brunswick, but I draft the enduring power of attorney so that it can be used by the attorney to deal with land in British Columbia?

In a Practice Bulletin, the B.C. Land Title & Survey Authority has expressed the view that an enduring power of attorney is made outside of British Columbia if both “ the adult’s address is outside of BC (meaning they are not “ordinarily resident” in BC), and it is not evident the EPOA was made according to British Columbia laws (i.e. it doesn’t reference the British Columbia Power of Attorney Act and does not include the officer certification statement.”

The B.C. Land Title & Survey Authority will not require the certificate from a solicitor outside of British Columbia referred to above if the enduring power of attorney shows that the maker’s address is within British Columbia, or if the document is made under British Columbia law as evidenced by a reference to the British Columbia Power of Attorney Act and there is an officer certification pursuant to the Land Title Act and the Evidence Act.

Accordingly, at least for the purpose of dealing with land in British Columbia, it is possible for an enduring power of attorney to be “made” in British Columbia if it is signed outside of British Columbia, or even if the person making it is not ordinarily resident in British Columbia.

It is important to keep in mind the witnessing requirements, discussed in my previous post, when the enduring power of attorney is signed in front of anyone other than a British Columbia lawyer or British Columbia notary public.