Did you know that estate planning documents (such as a will, power of attorney, representation agreement, etc.) executed outside of BC may not be effective in BC? The good news is that whether you moved to BC last week or 10 years ago, it is not too late to review your estate planning documents to ensure that they are effective in BC!
Each province has the power to regulate wills and other estate planning documents created in its respective boundaries. Accordingly, each province has a unique set of legislation with different requirements with regards to the form and execution requirements of wills, power of attorneys, representation agreements, etc. The practical effect of this arrangement is that estate planning documents drafted and executed outside of BC may not be enforceable in BC.
Below we will briefly discuss the most common estate planning documents used across Canada.
A will sets out how a person’s estate will be distributed upon their death. In BC, wills are governed by the Wills, Estates and Succession Act (“WESA”).
WESA states that a will that was executed outside of BC will be valid in BC if it was executed in accordance with WESA or with the law of place where it was made. A will that was not executed validly (ie. not in accordance with WESA or with the law of the place where it was made) may be given effect if the court believes that the will, although invalid, is an authentic document that represents the will-maker’s testamentary intentions.
Power of Attorney
A power of attorney (“POA”) appoints an agent (the “attorney”) to deal with a person’s financial affairs on their behalf. In BC, POAs are governed by the Power of Attorney Act (“POAA”).
The POAA states that a POA that was executed outside of BC will be deemed to be valid in BC if certain requirements set out in the legislation are satisfied. For example, the POA must have been validly executed in and continue to be effective in another Canadian province, the United States, the United Kingdom, Northern Ireland, Australia or New Zealand while the person was an ordinarily resident of the same place. The POA must also be “enduring” – ie. it must come into effect or continue to be effective when the person becomes incapable of making decisions about his or her financial affairs.
The POAA further requires that, to be effective in BC, an extrajurisdictional POA be accompanied by a certificate in the prescribed form. This means that a person who has a POA that was executed outside of BC must take additional action for the document to operate in BC.
A representation agreement appoints an agent (the “representative”) to help a person make decisions and to make decisions on their behalf with regards to health care and personal care. In BC, representation agreements are governed by the Representation Agreement Act (“RAA”).
The RAA states that a representation agreement that was executed outside of BC will be deemed to be valid in BC if certain requirements set out in the legislation are satisfied. For example, the representation agreement must have been validly executed and continue to be effective in another Canadian province (except the Yukon), the United States, the United Kingdom, Northern Ireland, Australia or New Zealand while the person was an ordinarily resident of the same place. The representation agreement must also authorize a person to assist the person make decisions respecting personal care or health care.
The RAA further requires that, to be effective in BC, an extrajurisdictional representation agreement be accompanied by a certificate in the prescribed form. As a result, a person who has a representation agreement that was executed outside of BC must take additional action for the document to operate in BC.
A personal directive, sometimes referred to as a “living will”, appoints an agent (the “agent”) to help a person carry out their health care, personal, and end-of-life wishes. BC legislation does not address personal directives. However, many other Canadian provinces, such as Alberta, have legislation governing personal directives.
Theoretically, it is possible that a portion of a personal directive executed outside of BC may be upheld as a representation agreement in BC (please see the Representation Agreement section above). However, more often than not, a personal directive is viewed only as a statement of wishes which the appointed representative of committee of the person is to take into consideration, among other factors, when making health care decisions for on their behalf. As such, we strongly recommend having extrajurisdictional personal directives re-executed as representation agreements under BC laws.
An advance directive is a written instruction that gives or refuses a person’s consent to a specific health care treatment. In BC, advance directives are governed by Part 2.1of the Health Care (Consent) and Care-Facility (Admission) Act (“HCCAA”).
The HCCAA is silent on how advance directives executed outside of BC will be treated in BC. As a result, we strongly recommend having extrajurisdictional advance directives re-executed in accordance with BC laws.
If you are interested in learning more about extrajurisdictional estate planning documents or would like further advice on whether or not your particular estate planning documents are valid in BC, please contact our wills and estates team at Touchstone Law Group LLP – we are here to simply the complicated!
Author: Danielle Brito
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your estate planning needs, please contact our office at (250)448-2637 or any of our lawyers practicing in the area of wills & estates at the following:
Una Gabie: firstname.lastname@example.org
Jennette Vopicka: email@example.com
Danielle (Dani) Brito: firstname.lastname@example.org