When Does an Enduring Power of Attorney Start in British Columbia?

Many people assume an enduring power of attorney only starts when someone loses capacity. Others assume it starts the moment it is signed. In British Columbia, either can be true, depending on how the document is written.

This article explains when authority begins under the Power of Attorney Act, how a document can be drafted to start right away or later, and what people usually need to show when they rely on it. The details depend on the wording of the document, so get advice on your own.

This article covers the law of British Columbia.

Three things that must all be true

An enduring power of attorney takes effect on the latest of three events:

• when both the adult and an attorney have signed it
• any effective date the document states
• when a triggering event the document names, such as incapacity, has been confirmed

Because it is the latest of these, a document can start right away or only on incapacity. If nothing in the document delays it, signing by both sides is what starts it.

Starting now or only on incapacity

To be enduring at all, the document must say whether the attorney may act while the adult is still capable or only once the adult is incapable. That choice is the heart of the timing question.

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. Vague wording here is a common source of delay, so it is worth being specific.

Each approach has trade-offs. An immediate document helps if you want help now, but gives the attorney authority while you are well. A springing document keeps control with you for longer, but someone will have to prove the trigger has happened before anyone can act.

Signing steps before anyone can act

An enduring power of attorney must be in writing, signed and dated by the adult in front of 2 witnesses, and both witnesses must sign in front of the adult. The attorney must also sign in front of 2 witnesses before acting under it. Missing the attorney's signature can leave a document that looks complete but is not yet in effect.

• 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 the adult is physically unable to sign, someone else may sign for them if the adult is present and directs it, and that person cannot be a witness.
• 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 it was signed under the alternative process.
• If the document will be used for Land Title Act purposes, it must also be executed and witnessed as that Act requires.

Anyone named as attorney, and that person's spouse, child or parent, cannot witness.

Proving incapacity and when authority ends

If your document starts on incapacity, it must state how the event is to be confirmed and by whom, so the wording of that confirmation step matters. Any person may apply to the BC Supreme Court for an order releasing information needed to decide whether an adult is incapable.

Banks and other institutions may ask for their own steps. Under a 2014 voluntary commitment, federally regulated banks agreed to make information about powers of attorney available to clients. How an institution treats a document can vary, so if one refuses, ask which requirement is unmet. An attorney may also apply to the court for directions.

Authority also stops. An enduring power of attorney terminates when the adult dies. An attorney's own authority ends in several situations, including resignation, bankruptcy, or the attorney's own incapacity or death. An attorney who is the adult's spouse loses authority when the marriage or marriage-like relationship ends, unless the document provides otherwise. If a court declares the adult a patient and appoints a committee, every power of attorney they gave is terminated; if the Public Guardian and Trustee becomes guardian by the statutory or certificate route, the document is suspended and the Public Guardian and Trustee decides whether to terminate it.

What to do next

• Decide whether you want authority to start now or only on incapacity.
• If it should start on incapacity, name how it will be confirmed and by whom.
• Make sure the adult and the attorney both sign, with the right witnesses.
• Keep the signed original somewhere your attorney can find it.
• If you are relying on a document, gather proof of the trigger required by its wording.
• If you have no document and capacity is a concern, ask a lawyer about a court-appointed committee.

Frequently asked questions