An Enduring Power of Attorney is a document prepared in accordance with the Power of Attorney Act, that a capable adult (the “Adult”) (at least 19 years old) uses to appoint another person, called an Attorney, to make financial and legal decisions for them. Essentially, an Enduring Power of Attorney remains in effect (or endures) if the adult becomes incapable of managing his or her affairs (Power of Attorney Act s. 30). Those considering creating Enduring Power of Attorneys should be particularly cognizant of the age requirement for an Attorney being able to act for a capable Adult. Specifically, if an Enduring Power of Attorney names as Attorney an individual who is not an adult (at least 19 years of age), that individual may not act until becoming an adult (Power of Attorney Act s. 18).
In order to distinguish an Enduring Power of Attorney from a general Power of Attorney, s. 14 of the Power of Attorney Act states that an Adult who makes an Enduring Power of Attorney must state the following in the Enduring Power of Attorney:
- Whether the Attorney may exercise authority:
- Only while the adult is capable; or
- Only while the adult is incapable of making decisions about the adult’s financial affairs, and
- That the authority of the Attorney continues despite the Adult’s incapability
The key distinction between a general Power of Attorney and an Enduring Power of Attorney is that an Enduring Power of Attorney, unlike a general Power of Attorney does not cease to be in effect if the Adult becomes incapable of managing his or her affairs. However, there are enumerated grounds through which the authority of an Attorney under an Enduring Power of Attorney is suspended or ends. S. 29 of the Power of Attorney Act provides that the authority of an Attorney under an Enduring Power of Attorney is suspended or ends:
- if the Enduring Power of Attorney is terminated,
- if the provisions of the Enduring Power of Attorney that give authority to the attorney are revoked,
- if the Attorney resigns in accordance with section 25 of the Power of Attorney Act, or
- if the Attorney
- is the Adult’s spouse and their marriage or marriage-like relationship ends,
- becomes incapable or dies,
- is bankrupt,
- is a corporation and the corporation dissolves, winds up or ceases to carry on business, or
- is convicted of a prescribed offence or an offence in which the Adult was the victim.
The Land Title and Survey Authority of British Columbia (the “Land Title Office”) often deals with Enduring Power of Attorneys, when an Attorney wishes to deal with the real property of the authorizing Adult. However, the Land Title Office often finds issues with Enduring Power of Attorney documents and accompanying applications which cause them to reject registrations of Enduring Power of Attorneys to deal with the real property of the authorizing Adult. In essence, if the Enduring Power of Attorney does not meet the requirements of the Land Title Office, it will be ineffective for purposes related to real property. For example, defective Enduring Power of Attorneys cannot be used to sell, purchase, mortgage or otherwise deal with real property.
Some of the common mistakes the Land Title Office sees in Enduring Power of Attorneys are as follows*:
- The Attorney fails to sign the Enduring Power of Attorney.
- an Attorney is required to sign the actual Enduring Power of Attorney. This requirement is not met if the Attorney only executes the supporting documentation, such as a “proof of age” declaration.
- Information related to an alternate or substitute Attorney on the application is missing. For example, the application often does not
- list the triggering event that authorizes the alternate Attorney to act; or
- include the proof of age of the alternate Attorney.
- Extra-jurisdictional certificates are not provided with an Enduring Power of Attorney that was prepared outside British Columbia. Further, often these extra-jurisdictional Enduring Power of Attorneys fail to reference the BC Power of Attorney Act and does not include the Officer Certification Statement required under Part 5 of the Land Title Act.
These mistakes will result in the Enduring Power of Attorney being rejected for registration at the Land Title Office, and thus useless for land purposes.