Does a British Columbia Enduring Power of Attorney Work Abroad?

If you own property abroad, have family in another country, or are planning to move, you may wonder whether your BC enduring power of attorney will still be useful there. It is a fair question, because the document is only as helpful as the people who are willing to accept it.

This article explains what a BC enduring power of attorney is, why recognition outside the province is not something BC law alone can settle, and how BC treats documents that come from elsewhere. It is general information, not advice for your situation.

This article covers the law of British Columbia.

What a BC enduring power of attorney is

An enduring power of attorney lets you name an attorney to make decisions about your financial affairs. Unlike an ordinary power of attorney, which ends if you become mentally incapable, an enduring one keeps working after you become mentally incapable.

Only adults, meaning people aged 19 or older, can make one. To be enduring, the document must say whether the attorney may act while you are still capable or only once you are incapable, and that the attorney's authority continues even though you are incapable.

It does not cover personal care or health care. Those decisions are made through representation agreements and advance directives.

Will another country recognize it?

A BC enduring power of attorney is made under BC's Power of Attorney Act. Whether a court, land registry, bank or other institution in another country will accept it is decided by that country's law and that institution's own requirements.

Practice can also vary between institutions. Even within Canada, the federally regulated banks only made a voluntary 2014 commitment to make information about powers of attorney available to clients. That is not a promise that every institution will accept every document, so expect questions wherever you use it.

Because the answer differs from place to place, the most reliable step is to ask a lawyer in the country where you need the document what form it expects. They can tell you whether your BC document is enough, or whether you should also sign a separate local document there.

How BC treats documents made elsewhere

If you are moving to BC, or someone is relying in BC on a document signed elsewhere, BC has its own rule. A power of attorney made outside BC is deemed an enduring power of attorney in BC if it continues when the adult is incapable and meets the prescribed requirements. Those requirements include a certificate from a solicitor in the form set out in the Schedule to the regulation.

A different rule applies to older BC documents. An enduring power of attorney validly made under the former s. 8, which was repealed September 1, 2011, is deemed made under Part 2 of the Act.

Getting the BC document right

A document that is properly signed in BC is easier to defend wherever it is used. These are the main BC formalities:

• It must be in writing, signed and dated by you in front of 2 witnesses, and both witnesses must sign in front of you.
• Only one witness is needed if that witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia.
• Your attorney, and the attorney's spouse, child or parent, cannot witness, and neither can anyone under 19.
• The attorney must also sign in front of 2 witnesses before acting under it.
• If the document will be used for Land Title Act purposes, it must also be executed and witnessed as that Act requires.

If you are already abroad, the regulation allows signing by audiovisual communication, but the witness must be a lawyer or a BC notary in good standing, and the document must state that it was signed under the alternative process. Check the current wording of the regulation with a lawyer before relying on this.

What to do next

• List where your property and accounts are, and in which countries.
• Ask a lawyer in each of those countries what document or form is needed there.
• Ask the institution holding the asset what it requires before you need it.
• Have a BC lawyer review your document, including when it takes effect and who your attorney is.
• Think about personal care and health care separately, since a representation agreement or advance directive covers those matters.
• Review the document if you move, and remember that you can change or revoke it while you have capacity by giving written notice to each attorney.

If you become incapable with no workable document, the BC Supreme Court may have to appoint a committee to make decisions for you. Planning ahead for each place where you hold assets can help you avoid that.

Frequently asked questions