The BC Legislature recently introduced Bill 27 – 2022: Attorney General Statutes Amendment Act (No. 2), 2022 (“Bill 27”), which includes proposed amendments to the Power of Attorney Act, R.S.B.C. 1996, c. 370, the Representation Agreement Act, R.S.B.C. 1996, c. 405, and the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”). Bill 27 passed the Third Reading stage on October 19 and is awaiting Royal Assent.
Proposed Amendments to the Power of Attorney Act and Representation Agreement Act
Currently, the Power of Attorney Act provides that an enduring power of attorney must be signed by the adult making the instrument in the presence of two witnesses, and by the two witnesses in the presence of the adult. Each attorney named in the instrument must also sign the instrument in the presence of two witnesses before exercising their authority.
Similarly, the Representation Agreement Act provides that the adult appointing representatives must sign the agreement in the presence of two witnesses, each of whom must also sign the agreement in the presence of the adult.
If Bill 27 receives Royal Assent and the sections of the bill amending the Power of Attorney Act and the Representation Agreement Act respectively are brought into force by regulation, the Lieutenant Governor will have the power to make regulations establishing alternative processes for witnessing powers of attorney and representation agreements, including regulations on:
- what it means to be in the presence of another;
- signing in counterpart;
- required qualifications of a witness; and
- additional information that must be included in the document if the alternative process is used.
In making such regulations under either Act, the Lieutenant Governor would be able to make different regulations for different provisions of the Act, for different classes of persons, and for different circumstances.
The Information Bulletin from the BC government introducing Bill 27 indicates the type of regulations that can be expected if those sections of Bill 27 are brought into force:
“The amendments will add authority to enable remote (electronic) witnessing of enduring powers of attorney and representation agreements. These amendments will allow the temporary measures adopted during the COVID-19 pandemic to be made permanent by regulation.”
Our blog post summarizing the temporary measures adopted in the height of the COVID-19 pandemic for remotely witnessing powers of attorney and representation agreements can be found here. These temporary measures are still in effect under the COVID-19 Related Measures Act, S.B.C. 2020, c. 8.
Proposed Amendments to WESA
Currently, section 130 of WESA provides a prioritized list of persons whom the court may appoint to administer the estate of a person who dies without a Will. The list of eligible persons currently includes the deceased’s spouse, a child of the deceased, an intestate successor of the deceased (other than a spouse or child), a person nominated by the deceased’s spouse, children, or intestate successors, and the Public Guardian and Trustee.
Effective on the date that Bill 27 receives Royal Assent, Bill 27 will expand the list of eligible administrators in section 130 of WESA to include a person nominated by the government in cases where the deceased’s estate passes to the government under the Escheat Act (i.e. because the deceased does not have a lawful heir).
Bill 27 has passed through the legislature without amendment and is awaiting Royal Assent. The amendments to WESA will come into effect on the date of Royal Assent. The amendments to the Power of Attorney Act and the Representation Agreement Act will come into effect on a date to be determined by regulation.
If you have any questions about Bill 27, a member of our Wills + Estates team would be happy to assist you.