Who Can Witness an Enduring Power of Attorney in BC?

An enduring power of attorney lets someone you trust manage your financial affairs, even if you later become mentally incapable. Because it gives so much authority, British Columbia sets firm rules about how it is signed and who can watch it being signed. A mistake with a witness can cause problems later, often when the document is needed most.

This article walks through the basic signing rule, the people who cannot act as witnesses, the exceptions, and the special cases for physical inability to sign, remote signing and real estate. It explains how things generally work, and a lawyer or notary can confirm how they apply to your situation.

This article covers the law of British Columbia.

The basic signing rule

An enduring power of attorney must be in writing, and the adult must sign and date it in front of 2 witnesses. Both witnesses must also sign in front of the adult.

There is a shortcut. 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.

The Ministry of Attorney General's standard enduring power of attorney form is optional, so you are not required to use it. Whatever form you use, the signing rules still apply.

Who cannot witness

The following people cannot witness the signing:

• Anyone named as an attorney in the document.
• 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 the adult communicates.

In practice, this means family members who are involved in the plan are usually the wrong choice. Pick someone neutral, and check each witness against this list before the day of signing.

Exceptions to the witness ban

Two of the bans have exceptions. The ban on an attorney's employee or agent 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 the adult's way of communicating may still witness if interpretive help is provided.

Special situations: inability to sign, remote signing and real estate

If the adult is physically unable to sign, someone else may sign for them if the adult is present and directs the signing. That person cannot be a witness or anyone barred from witnessing.

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. This is a recent addition, so confirm the current wording with a lawyer or notary before relying on it.

If the document will be used for Land Title Act purposes, such as dealing with real estate, it must also be executed and witnessed as the Land Title Act requires. Ask about this before signing if property is involved.

The attorney's signature and the adult's capacity

The attorney must also sign the document in front of 2 witnesses before acting under it. If a direction in the document asks for something the law prohibits, or leaves out something the law requires, that direction is severed and has no effect.

The adult must also have capacity when signing. Capacity is presumed until the contrary is shown, and the test is whether the adult can understand the nature and consequences of the document. The Act sets out a test rather than a diagnosis, so a person with early dementia who still understands the required points can sign.

What to do next

• List every person named as an attorney or alternate, and their spouses, children, parents and employees.
• Choose witnesses who are 19 or older and who are not on that list.
• Consider using a lawyer or BC notary so that one witness is enough.
• Tell your lawyer or notary if the document will be used for real estate.
• Ask about remote signing if you cannot attend in person.
• Arrange for the attorney to sign in front of 2 witnesses before acting.

If you are unsure whether someone can witness, or the document has already been signed and you doubt the witnessing, speak with a lawyer before the document is needed.

Frequently asked questions