Enduring Power of Attorney in BC: How to Make One, Who Can Witness It, and the Form

An enduring power of attorney lets you choose who will manage your money, property and legal affairs if you can no longer do it yourself. In BC it is made under the Power of Attorney Act, and it only works if it is set up and signed the way that Act requires.

This guide covers what an enduring power of attorney does and does not cover, including the “medical power of attorney” question, who can make one and who you can appoint, the provincial form, the witnessing rules, your attorney's duties, and how it ends.

What an enduring power of attorney is

A power of attorney appoints someone, called your attorney, to act for you. An ordinary power of attorney ends if you become mentally incapable, which is often exactly when a family needs it. An enduring power of attorney (EPOA) is built for that situation: under the Power of Attorney Act, it continues to have effect while you are incapable, or comes into effect when you become incapable (s 10; s 30(1)).

An EPOA covers your financial affairs, which the Act says include your business and property and the conduct of your legal affairs (s 10). The document must state whether your attorney may act right away or only once you are incapable, and that the attorney's authority continues despite your incapacity (s 14). If you choose the second option, your attorney may have to prove that the triggering event has happened before others will deal with them; the land title office, for example, asks for evidence that it has occurred.

Is there a “medical power of attorney” in BC?

Not under that name. A BC enduring power of attorney covers financial affairs only; it does not authorize health care or personal care decisions. Those decisions are made through other tools:

• Representation agreement. Under section 7 of the Representation Agreement Act, you can authorize a representative to help make, or make, decisions about your personal care, routine financial management, major and minor health care, and obtaining legal services. A section 7 representative cannot refuse health care that is necessary to preserve your life (s 7(2.1)). A section 9 agreement can give broader authority, including over life-preserving care (s 9(3)).
• Advance directive. A written instruction, made while you are capable, that gives or refuses consent to health care for a time when you cannot give instructions (Health Care (Consent) and Care Facility (Admission) Act s 1).
• No plan in place. If you have no representative or guardian, a health care provider chooses a temporary substitute decision maker from a ranked list that starts with your spouse, then your children, parents and siblings (s 16(1) of that Act).

Many people sign an EPOA and a representation agreement at the same time. Our guide to choosing a power of attorney or representation agreement explains how they fit together, and advance directives in BC covers written health care instructions.

Who can make an EPOA, and who you can appoint

Adults are presumed capable of making an EPOA until the contrary is shown (s 11). You can make one unless you cannot understand its nature and consequences, which the Act describes as being unable to understand all of the following (s 12(2)):

• what property you have and its approximate value;
• your obligations to your dependants;
• that your attorney will be able to do anything about your financial affairs except make a will, subject to the limits in the EPOA;
• that your property may lose value if it is not managed prudently;
• that your attorney might misuse their authority; and
• that you may revoke the EPOA while you are capable.

You can appoint an individual, the Public Guardian and Trustee or a trust company (s 18(1)). Someone who is paid to provide you with personal or health care, or who works at a care facility where you receive that care, cannot be appointed unless they are your child, parent or spouse (s 18(1)–(2)). If two or more attorneys share the same matters, they must act together unless the EPOA says otherwise, and you can name an alternate who acts only in the circumstances you set out (s 18(5)).

If capacity may become an issue soon, for example after a diagnosis, act early; see a parent's dementia diagnosis: estate planning steps to take now.

The BC enduring power of attorney form

There is no mandatory form: the Power of Attorney Regulation does not prescribe one. The Province publishes an optional Enduring Power of Attorney form on its incapacity planning page. The form says its use is voluntary and that it may not be appropriate for everyone, and any document you use must still meet the legislation's requirements.

The provincial form, published in 2011, covers the main choices:

• your attorney and, if you wish, an alternate;
• authority over your financial affairs that continues if you become incapable;
• whether your attorney is paid. An attorney can be paid only if the EPOA expressly authorizes it and sets the amount or rate (s 24); and
• a land title certification section for use with real estate.

Some points are not on the form and are worth deciding deliberately. An attorney can make gifts or loans from your property only if the EPOA allows it or, if it is silent, within strict limits: enough must remain for your needs, you must have made similar gifts while capable, and the yearly total cannot exceed the lesser of 10% of your previous year's taxable income or $5,000 (s 20(1); Regulation s 3). The form also has no wording for signing by video, which must be added if that process is used.

Signing and witnessing an EPOA

You must sign and date the EPOA in front of two witnesses, who sign in your presence, or one witness who is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia (s 16(1), (4)). Your attorneys, their spouses, children and parents, anyone under 19 and certain others cannot witness (s 16(6)). Each attorney must also sign in front of witnesses before acting, but not necessarily in your presence or on the same day (s 17).

Since 1 January 2023, the signing can be witnessed by video under the “alternative process” (s 17.1; Power of Attorney Regulation s 2.1, BC Reg 278/2022). The witness must be a lawyer or notary, each person may sign an identical counterpart, and the EPOA must state that the alternative process was used. Our guide to witnessing an enduring power of attorney or representation agreement, including by video explains the details.

If the EPOA will be used for real estate, it must also be executed and witnessed in accordance with the Land Title Act (s 16(5)), which adds requirements, particularly when the signing is done by video.

What your attorney must do

Your attorney must act honestly and in good faith, with reasonable prudence, and within the authority you give them (s 19(1)). They must act in your best interests, taking into account your current wishes, known beliefs and values, and any directions in the EPOA (s 19(2)). Among other duties, they must (s 19(3)–(4)):

• give priority to your personal and health care needs, where reasonable;
• invest under the Trustee Act unless the EPOA says otherwise;
• encourage your independence and involvement in decisions;
• not dispose of property they know you have specifically gifted in your will, unless that is necessary to meet their duties; and
• keep your property separate from their own, except jointly owned property.

Attorneys must keep records, including a list of your property and liabilities and accounts of what they do (Regulation s 2), and they can never make or change a will for you (s 21). For more, see what your attorney can and can't do under a BC enduring power of attorney. If you are worried that an attorney is abusing the role, options when a parent's power of attorney is being misused sets out the steps.

Changing, revoking and ending an EPOA

While you are capable, you can change or revoke your EPOA. You must give written notice to each attorney, and a change must be signed and witnessed the same way as the original (s 28).

An attorney's authority ends if they resign, die, become incapable or go bankrupt, or, if they are your spouse, when your relationship ends unless the EPOA says otherwise (s 29). The EPOA itself ends on your death, among other events (s 30(4)). From then on your executor deals with your estate, as explained in power of attorney vs executor in BC.

A power of attorney made outside BC can be treated as an EPOA here if it continues when you are incapable, was validly made where you then lived (another province or territory, the US, the UK, Australia or New Zealand), is still effective there, and comes with a certificate from a lawyer in that place (Regulation s 4). Without any EPOA, your family may have to ask the court to appoint a committee to manage your affairs; losing capacity without a power of attorney in BC explains what that involves.

Ready to put an enduring power of attorney in place? Start with a conversation

Our wills and estate planning lawyers can explain your choices, prepare an enduring power of attorney and representation agreement that fit your circumstances, and arrange the signing, including by video with a lawyer as witness.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.