How Many Witnesses Does a BC Power of Attorney Need?

If you are signing an enduring power of attorney in British Columbia, the witnessing step is where documents most often go wrong. Who sits in the room and who signs where can decide whether the document works when it is needed.

This article explains the general witness rules, who is disqualified, and the main exceptions. Your own situation, especially if real estate is involved, may call for a lawyer or notary to confirm the details.

This article covers the law of British Columbia.

The basic rule: two witnesses

An enduring power of attorney must be in writing, signed and dated by you in front of 2 witnesses. Both witnesses must sign in front of you.

An enduring power of attorney is a document that lets someone you choose manage your financial affairs and keeps working even if you later become mentally incapable. Because it can carry so much authority, the law is strict about how it is signed.

The person you name as attorney must also sign the document in front of 2 witnesses before acting under it.

Only an adult can make one, and in this part of the Power of Attorney Act an adult is someone aged 19 or older. You may make one unless you cannot understand its nature and consequences, and capacity is presumed until the contrary is shown. The test is about understanding, not a diagnosis, so a person with early dementia who still understands the points the Act lists can sign.

When one witness is enough

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.

If you are physically unable to sign, someone else may sign for you, as long as you are present and direct them to do so. That person cannot be a witness or anyone barred from witnessing.

Who cannot witness

• Anyone named as an attorney.
• The spouse, child or parent of a named attorney.
• An employee or agent of a named attorney.
• Anyone under 19.
• Anyone who does not understand how you communicate.

There are exceptions. The ban on an attorney's employee or agent witnessing does not apply where the named attorney is a lawyer, a notary, the Public Guardian and Trustee, or a financial institution authorized under the Financial Institutions Act. A person who does not understand your way of communicating may still witness if interpretive help is provided.

Real estate and remote signing

If the enduring power of attorney will be used for Land Title Act purposes, it must also be executed and witnessed as the Land Title Act requires. Those rules differ from the general ones, so ask a lawyer or notary if property is involved.

The regulation also allows signing by audiovisual communication. 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. Confirm the current wording of this rule before relying on it.

The attorney and what the document must say

Witnessing is only one part of a valid document. To be enduring, it 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.

• An individual may be your attorney unless they provide personal care or health care services to you for pay, or are an employee of the facility where you live.
• A child, parent or spouse of yours may still be named even if they are a paid caregiver or an employee of your care facility.
• A person under 19 may be named but cannot act until they turn 19.
• If two or more attorneys are named, they must act unanimously unless the document says otherwise.

The document takes effect on the latest of when you and an attorney have both signed it, any effective date it states, or when a triggering event it names, such as incapacity, has been confirmed. If it starts only on such an event, you must state how the event is to be confirmed and by whom, for example by a named doctor's letter.

The Ministry of Attorney General's standard enduring power of attorney form is optional. Personal care and health care decisions are made through representation agreements and advance directives, not through an enduring power of attorney.

What to do next

• Decide who your attorney or attorneys will be before choosing witnesses.
• Check that no witness is on the disqualified list above.
• Arrange for both witnesses to be present and to sign in front of you.
• Ask your attorney to sign in front of 2 witnesses too.
• Consider using a lawyer or notary as a single witness, especially if the document will be used for real estate.
• Keep the signed original somewhere safe and tell your attorney where it is.

Frequently asked questions