Mobile Notary Visits in BC: Hospitals, Care Homes and When Capacity Is a Concern

Families often call when a parent has been admitted to hospital or moved into care and a document suddenly needs signing: a bank form, a power of attorney, a representation agreement, sometimes a will.

A lawyer can attend in person, but the person signing still has to understand what they are signing, and the right witnesses have to be there. Knowing the rules in advance makes the visit calmer and the documents sounder.

Why a bedside signing is different

In an office, a signing is routine: identification, a review of the document, a signature. At a bedside, the witness has more to weigh. Illness, medication, fatigue and an unfamiliar setting can all affect how well someone follows a conversation, and documents signed in those conditions are the ones most likely to be questioned later.

A lawyer attending a hospital or care home will usually want to speak with the person privately, confirm what they want and why, and make notes of the conversation. Family members are often asked to step out for part of the visit. That is not a sign of distrust; it protects the person and the document. For what a lawyer-notary can certify and witness generally, see our guide to notary services in BC.

Capacity is presumed, but it is tested document by document

BC law starts from a presumption. Until the contrary is shown, an adult is presumed capable of making an enduring power of attorney (Power of Attorney Act, s 11) and a representation agreement (Representation Agreement Act, s 3). Both Acts also say an adult's way of communicating is not, by itself, grounds for finding them incapable.

The tests then differ by document, which is why a diagnosis alone rarely answers the question:

• Enduring power of attorney. The adult must be able to understand the nature and consequences of the document, including the property they have and its approximate value, their obligations to dependants, that the attorney will be able to act on their financial affairs, that value may decline if the attorney is not prudent, that the attorney might misuse the authority, and that they can revoke it while capable (Power of Attorney Act, s 12).
• Representation agreement with standard provisions. An adult can make one even if they cannot make a contract or manage their own affairs. Relevant factors include whether they communicate a desire to have a representative, show choices and preferences, understand that the representative may make decisions affecting them, and have a relationship of trust with that person (Representation Agreement Act, ss 7 and 8).
• Representation agreement with broader powers. For the wider authority available under section 9, the adult must understand the nature and consequences of the proposed agreement (s 10).
• Will. A person must be mentally capable of making a will (Wills, Estates and Succession Act, s 36). If capacity is already in doubt, a will may later be challenged; our article on challenging a will for lack of capacity explains how those disputes arise.

Because the representation agreement test for standard provisions is lower, it can sometimes be made when a power of attorney cannot. Our comparison of powers of attorney and representation agreements explains what each covers.

Witnessing rules to get right

Enduring power of attorney

The adult signs and dates it in the presence of two witnesses, or one witness if that witness is a lawyer or a BC notary (s 16(1) and (4)). The attorney, the attorney's spouse, child or parent, and in most cases the attorney's employee or agent cannot witness (s 16(6)). If the adult is physically unable to sign, someone else can sign at their direction in their presence, but not a witness or a disqualified person (s 16(2) and (3)). The attorney must also sign, with witnesses, before acting (s 17). If the power of attorney will be used for land, it must also meet the Land Title Act requirements (s 16(5)).

Representation agreement

The adult signs in the presence of two witnesses, or one lawyer or notary (s 13(3.01) and (3.02)). A representative's signature need not be witnessed, but each representative must sign before acting (s 13(2.1) and (3.03)). Similar witness disqualifications apply, and witnesses to a standard agreement complete a prescribed certificate (s 13(5) and (6)).

Will

A will needs two witnesses present at the same time as the will-maker signs (WESA, s 37), so a single lawyer is not enough on their own. A gift to a witness or a witness's spouse is void unless a court orders otherwise (s 43), which is another reason family members who benefit should not witness.

For powers of attorney and representation agreements, a witness who does not understand the way the adult communicates cannot act without interpretive assistance (Power of Attorney Act, s 16(6); Representation Agreement Act, s 13(5)). If a parent is more comfortable in another language, arrange an interpreter in advance.

Preparing for the visit

• Talk to the care team. Ask about visiting hours, a private room or space, and the times of day the person is usually most alert.
• Send documents ahead. Leave them unsigned. Our list of what to bring to a notary appointment covers identification and originals.
• Have the right people available. For a will, two eligible witnesses; for an enduring power of attorney, the named attorneys can sign separately later.
• Expect questions. The lawyer will ask the person, in their own words, what the document does and why they want it.

If the person cannot sign

Sometimes the honest answer at the bedside is that the person cannot meet the test today. A later visit may go differently if the cause is temporary. If not, a family may need a different route, such as a court-appointed committee. Our article on losing capacity without a power of attorney explains what happens next.

Need documents signed in hospital or care? Plan the visit first

Our notary services can review the documents in advance, attend in person where appropriate, and work with our wills and estates team when a power of attorney, representation agreement or will is needed at the same time.

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