Electronic witnessing of enduring powers of attorney and representation agreements under the BC COVID-19 Related Measures Act

On July 10, 2020, Bill 19 – 2020: COVID-19 Related Measures Act (the “Act”) entered into force. The Act repealed and re-enacted numerous ministerial orders made under the Emergency Program Act, including Ministerial Order No. M162 (the “Order”), as “COVID-19 provisions” of the Act. (Since the substance of the Order has not changed, we will continue to refer to it as the Order.)

The Order permits and sets out the requirements for remotely witnessing enduring powers of attorney under the Power of Attorney Act, as well as representation agreements under sections 7 and 9 of the Representation Agreement Act. Remote witnessing is permitted where certain individuals are “electronically present”. Electronic presence is defined to mean the circumstances in which two or more individuals in different locations communicate simultaneously to an extent that is similar to communication that would occur if all the individuals were physically present in the same location; for example, through the use of videoconferencing technology.

Enduring powers of attorney

Ordinarily under the Power of Attorney Act, an adult who is executing an enduring power of attorney must sign in the presence of two witnesses, and both witnesses must sign in the presence of the adult. Additionally, before exercising any authority under an enduring power of attorney, an attorney must sign in the presence of two witnesses (but an attorney is not required to sign in the presence of the adult or any other attorney). In both cases, only one witness is required if the witness is a lawyer or notary public.

Under the Order, these presence requirements are satisfied by electronic presence, and complete and identical copies of the enduring power of attorney may be signed in counterpart. There are two further requirements:

• The witness must be a lawyer or a notary public. (Incidentally this means only one witness is required.)
• An enduring power of attorney made in accordance with the Order must include a statement that it was signed and witnessed in accordance with the Order. (However, since the Order was repealed and re-enacted as a COVID-19 provision under the Act, it may be prudent to add that detail.)

Similar rules apply where a person signs an enduring power of attorney on behalf of the adult.

Additionally, if an adult wants to appoint an attorney who can deal with interests in real estate, then the power of attorney must also be executed and witnessed in accordance with the requirements under Part 5 of the Land Title Act. This ordinarily requires an individual to appear before an officer, but in these unusual circumstances due to COVID-19, the Registrar may accept an Affidavit of Execution sworn under section 49 of the Land Title Act. This may be done remotely, but you must follow process set out in Practice Bulletin 01-20. For more information, please see the BC Land Title and Survey Authority news release.

Representation agreements

Ordinarily under the Representation Agreement Act, an adult must sign the representation agreement, and his or her signature must be witnessed by two witnesses, each of whom must also sign the representation agreement. However, only one witness is required if the witness is a lawyer or notary public.

Under the Order, this presence requirement is satisfied by electronic presence, and complete and identical copies of the representation agreement may be signed in counterpart. There are two further requirements:

• The witness must be a lawyer or a Notary Public. (Incidentally this means only one witness is required.)
• A representation agreement made in accordance with the Order must include a statement that it was signed and witnessed in accordance with the Order. (However, since the Order was repealed and re-enacted as a COVID-19 provision under the Act, it may be prudent to add that detail.)

The Representation Agreement Act also requires a representative to sign the representation agreement before exercising any authority. However, the adult and any one or more representatives are not required to be present together when they sign the representation agreement, any one or more of them can sign in counterpart, and the signature of a representative or alternate representative need not be witnessed. As a result, the electronic presence provisions in the Order do not apply in this respect.

Similar rules apply to persons signing on behalf of an adult, and to certain certificates prescribed under the Representation Agreement Regulation.

Application

The Order, now a “COVID-19 provision” under the Act, applies from the date the Order was made (i.e. May 19, 2020), and ends 90 days after the state of emergency declared on March 18, 2020 under the Emergency Program Act expires or is cancelled. (The state of emergency is regularly extended for increments of two weeks, most recently to October 13, 2020.)  For greater certainty, while the Order initially provided that it terminates when the state of emergency expires or is cancelled, as a “COVID-19 provision” under the Act it remains in effect in accordance with the Act despite anything in the Order to the contrary. The Lieutenant Governor in Council may also extend a COVID-19 provision (including the Order) for up to one year after the Act entered into force (i.e. until July 10, 2021).

Conclusion

The re-enactment of the Order as a COVID-19 provision under the Act has effectively extended the duration of remote witnessing of enduring powers of attorney and representation agreements, and continues to facilitate socially-distanced estate and incapacity planning during the COVID-19 pandemic.

For further information please contact the authors or any member of our Wills, Estates and Trusts group.

This article provides only general information about legal issues and developments, and is not intended to provide specific legal advice. Please see our disclaimer for more details.