Extra-Jurisdictional Recognition of Enduring Powers of Attorney and Representation Agreements in British Columbia

25 mai 2012 | Brendan Burns

( Disponible en anglais seulement )

Significant amendments to the Power of Attorney Act and the Representation Agreement Act came into force in British Columbia on September 1, 2011. While powers of attorney or representation agreements made before this date are still valid, the new legislation brought in many changes.  One significant amendment is that British Columbia’s legislation, like other Canadian jurisdictions such as Ontario, Alberta, Manitoba, and Saskatchewan, now recognizes extra-jurisdictional enduring powers of attorney and representation agreements.

An enduring power of attorney is a document that allows an adult to appoint another person to make financial and legal decisions on the adult’s behalf if the adult becomes mentally incapable because of age, accident or illness.  A representation agreement, on the other hand, allows an adult to appoint another person to make financial, legal, personal care and health care decisions on the adult’s behalf if they become incapable of making those decisions independently.

Section 38 of the amended Power of Attorney Act provides that, subject to any limitations set out in the regulations, a power of attorney that applies or continues to apply when an adult is incapable, was made in a jurisdiction outside British Columbia, and complies with any prescribed requirements is deemed to be an enduring power of attorney made under the Power of Attorney Act.  Similarly, section 41 of the Representation Agreement Act provides that, subject to any limitation or condition set out in the regulations, an agreement that performs the function of a representation agreement, was made in a jurisdiction outside British Columbia, and complies with any prescribed requirements is deemed to be a representation agreement made under the Representation Agreement Act.

The prescribed requirements of recognition of each instrument, as set out in section 4 of the regulations for the Power of Attorney Act and section 9 of the regulations for the Representation Agreement Act, are effectively identicalFor an instrument to be deemed an enduring power of attorney, the instrument must grant a power of attorney to a person that continues to have effect while, or comes into effect when, the adult is incapable of making decisions about the adult’s financial affairs.  Similarly, for an instrument to be deemed a representation agreement, the instrument must authorize a person to assist the maker of the instrument make decisions, or to make decisions on behalf of the maker of the instrument, respecting personal care or health care.

For an instrument be recognized under either piece of legislation, the instrument must be made by a person who was, at the time of its making, either ordinarily resident in another Canadian province, the United States of America, the United Kingdom of Great Britain and Northern Ireland, Australia or New Zealand.  An instrument made outside this restricted list will not be recognized in British Columbia.  For an instrument to be recognized, it must also be validly made according to the laws of both the jurisdiction in which the person was ordinarily resident and the jurisdiction in which the instrument was made.

The enduring power of attorney and representation agreement recognition provisions also require that the instrument be accompanied by a certificate from a solicitor permitted to practice in the jurisdiction in which the instrument was made, indicating that the instrument meets the requirements set out above.   The regulations provide a prescribed form for these certificates, which requires the solicitor giving the certificate to state the date the instrument was made, the name of the maker, the name of the persons appointed and the powers granted. The solicitor must also provide the name of the jurisdiction they are entitled to practice law in, their contact information, and the contact information for the regulatory body that governs the practice of law in their jurisdiction.

The regulations also provide that a person named as an attorney in a deemed enduring power of attorney or as a representative in a deemed representation agreement must not exercise any powers in British Columbia that could not lawfully be exercised by an attorney or representative under the Power of Attorney Act or Representation Agreement Act, respectively, or in the jurisdiction in which the deemed enduring power of attorney or deemed representation agreement was made.  Furthermore, a person can only rely on the extra-jurisdictional recognition of the instrument in British Columbia if the person who made the instrument and the attorney or representative are both at least 19 years of age.

Although not yet proclaimed into force, the British Columbia legislature has also passed amendments to the Health Care (Consent) and Care Facility (Admission) Act which provide for the recognition of extra-jurisdictional advance directivesAn advance directive, which is commonly referred to as a “living will”, is a written instruction by a capable adult that gives or refuses consent to health care for the adult in the event the adult is not capable of giving the instructions at the time the health care is provided.

These new provisions will facilitate the recognition of extra-jurisdictional enduring powers of attorney and representation agreements (and eventually extra-provincial advance directives) in British Columbia. Ultimately this may simplify the financial and personal care planning required for people who live in another jurisdiction on the prescribed list and move to British Columbia or who live in another jurisdiction on the prescribed list but have assets in British Columbia.

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