When Does an Enduring Power of Attorney Take Effect in BC?

You may be signing an enduring power of attorney, or you may have been named as an attorney and want to know when you can start acting. The answer depends on what the document itself says, and many people are surprised that it can start right away.

This article explains the timing rules in British Columbia, how a document can be set to start later, and what to check before anyone relies on it.

This article covers the law of British Columbia.

What makes a power of attorney "enduring"

An ordinary power of attorney ends if the person who gave it becomes mentally incapable. An enduring power of attorney keeps working even after that happens.

To be enduring, the document must say whether the attorney may act while the adult is still capable or only once the adult is incapable, and it must say that the attorney's authority continues even though the adult is incapable. It deals with financial affairs. Personal care and health care decisions are made through representation agreements and advance directives instead.

Only adults can make an enduring power of attorney, and under this part of the Power of Attorney Act an adult is someone aged 19 or older. An adult may make one unless they cannot understand its nature and consequences, and capacity is presumed until the contrary is shown. The Act sets a test rather than relying on a diagnosis, so a person with early dementia who still understands the required points can sign.

The rule on when it starts

An enduring power of attorney takes effect on the latest of three things: when both the adult and an attorney have signed it, any effective date the document states, or when a triggering event it names, such as incapacity, has been confirmed. So it can start right away, or only on incapacity.

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

Starting later: springing powers

If the document takes effect only on an event such as incapacity, the adult must state in it how the event is to be confirmed and by whom, for example by a named doctor's letter. A vague trigger can leave the attorney and the bank unsure whether the document is active, so clear wording matters.

Once the adult becomes incapable after making the document, the attorney's authority continues.

Once the document is in effect, the attorney must act honestly and in good faith, use the care, diligence and skill of a reasonably prudent person, act within the authority given, and keep the prescribed records. The attorney must also act in the adult's best interests, taking into account the adult's current wishes, known beliefs and values, and any directions in the document. The document terminates when the adult dies.

Points to check before relying on it

• Is it in writing, signed and dated by the adult in front of 2 witnesses, or one witness who is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia? If the adult is physically unable to sign, someone else may sign for them if the adult is present and directs the signing, and that person cannot be a witness or anyone barred from witnessing.
• Do the witnesses avoid the barred categories, such as a named attorney, that attorney's spouse, child or parent, or anyone under 19?
• Has the attorney signed in front of 2 witnesses?
• If the document is to be used for real estate, was it also executed and witnessed as the Land Title Act requires?
• If it starts only on a triggering event, has that event been confirmed in the way the document requires?

Documents made outside BC, or before September 1, 2011, may be treated differently. A power of attorney made outside BC is deemed enduring in BC if it continues on incapacity and meets the prescribed requirements, including a solicitor's certificate. A document validly made under the former s. 8 is deemed made under Part 2.

What to do next

• Read the effective-date and trigger wording in the document itself.
• Gather any letter or confirmation the document requires before the attorney acts.
• If the wording is unclear, or a bank hesitates, ask a lawyer to review it. An attorney can also apply to court for directions on the scope of their powers and duties.

Frequently asked questions