51 Deposit Of Power Of Attorney On Registration Of Instrument

REGULATIONS AND FORMS

Execution in Accordance with Part 5

When filing a power of attorney in the land title office, because s. 51(2) of the Land Title Act requires that the “execution of a power of attorney must be witnessed or proved in the manner required for instruments by Part 5”, an applicant must comply with the E-filing Directions, available at https://ltsa.ca/wp-content/uploads/2020/I0/E-filing-Directions.pdf, and Director’s Requirements for Hardcopy Land Title Forms (DR 04-11), available at https://ltsa.ca/wp-content/uploads/2020/10/DR_04-11_Hardcopy_Land_Title_Forms.pdf. These provisions state that:

Any other instrument that is required to be witnessed under Part 5 of the Act and that is not required to be in a form prescribed by the director under the Act shall, where the witness is an officer, contain the officer certification statement set out in subsection (1) and the witness shall sign the instrument under a column headed “Officer Signature(s)” in the same manner as required in Item 7 of Form A.

Forms of Officer Certification

See the various examples included under Part 5 of the Act.

Use of Pre-printed Power of Attorney Forms

Some of the pre-printed forms of power of attorney available from legal stationers leave a blank for insertion of intended powers. Following this blank, these forms set out the ancillary powers. If the blank is left blank, the registrar may refuse to accept these forms for filing as they may leave the powers conferred unclear. It is not for the registrar to assume that the donor’s intention was to give unlimited powers.

Optional Forms under Power of Attorney Act

Forms 1 and 2

Section 9 of the Power of Attorney Act provides for the use of two optional forms. Form 1, Power of Attorney (for the appointment of one attorney), confers a general power of attorney, and Form 2, Power of Attorney (for the appointment of more than one attorney), confers authority on more than one attorney acting separately or together on behalf of the donor.

Standard Forms Published by Ministry of Attorney General

For background information about the 2011 amendments to s. 51 and additional links to standard forms for enduring powers of attorney and representation agreements, see www2.gov.bc.ca/gov/content/health/managing-your-health/incapacity-planning.

Submissions

On the Power of Attorney Application, select Nature of Interest, Power of Attorney, and attach an image of the originally signed power of attorney.

Reproduced below is the text of Forms 1 and 2, modified in accordance with the officer certification requirements of the Land Title Act (Part 5) and the regulations.

PRACTICE

“Power of Attorney”

A power of attorney is a document under which one person, the donor (sometimes called the principal), confers authority on another person, the attorney (sometimes called the donee).

Limitations on the Power to Grant a Power of Attorney

There are different limitations on a donor’s ability to grant a power of attorney depending on whether the donor is a personal representative or trustee, or is a company director:

1. Personal Representatives (Executors) and Trustees: Generally, a personal representative or trustee cannot delegate or assign, by power of attorney or otherwise, discretion in dealing with real property unless authorized by the trust instrument. See, however, s. 55 of the Act which allows a personal representative or trustee living outside British Columbia to appoint an attorney to exercise the personal representative’s or trustee’s power within the province unless the trust instrument expressly forbids such an appointment.
2. Company Directors: Generally, the directors of a company cannot delegate their powers and duties except as the constating documents of the corporation allow.

Two Types of Powers of Attorney

There are two types of power of attorney:

1. General: The attorney can deal with any property owned by the donor, including “after acquired property”, unless the power of attorney expressly provides to the contrary.
2. Limited (or Special or Restricted): The powers are restricted to the property described in the power of attorney or to the nature of the dealing described in it.

Either type may be enduring. An enduring power of attorney expressly provides that the power of attorney does not cease when the donor becomes mentally infirm, although it does cease when the donor becomes a “patient” under the Patients Property Act or when it is revoked by the donor. See s. 56 of this Act regarding enduring powers of attorney.

Enduring Powers of Attorney

Amendments to the Power of Attorney Act, which came into force September 1, 2011, establish new requirements relating to enduring powers of attorney. The requirements include:

• additional executions and specific witnessing requirements;
• a specific amendment related to the effective date of an enduring power of attorney;
• recognition of alternate attorneys;
• “springing” or “contingent” enduring powers of attorney; and
• enduring powers of attorney made in a foreign jurisdiction.

The Power of Attorney Act has been further amended to authorize the establishment of alternative processes for signing of enduring powers of attorney. The amendments came into force on January 1, 2023, along with amendments to the Power of Attorney Regulation, B.C. Reg. 20/2011 that establish processes for the remote witnessing of enduring powers of attorney.

Some of the following commentary originates from Practice Bulletin No. 02-11 (Enduring Powers of Attorney), updated to January 1, 2023.

Under the Power of Attorney Act, the donor of an enduring power of attorney is referred to as the “adult”, while the donee is referred to as the “attorney”.

Executions and Witnessing and Part 5 of the Land Title Act Requirements

The execution and witnessing requirements for both the adult and the attorney are set out in ss. 16, 17, and 17.1 of the Power of Attorney Act.

Section 16 requires that witnessing of execution by the adult be done in accordance with Part 5 of the Land Title Act. Section 17 does not apply that requirement to witnessing of execution by the attorney.

Execution by the Adult (s. 16)

An enduring power of attorney must be signed by the adult whose signature must be witnessed in the presence of either:

1. a notary public, who is a member of the Society of Notaries Public of British Columbia, in accordance with Part 5 of the Land Title Act; or
2. a British Columbia lawyer (see note below) in accordance with Part 5 of the Land Title Act; or
3. any other person who may act as an officer under the Evidence Act in accordance with Part 5 of the Land Title Act, along with a second witness; or
4. two witnesses, neither of whom are officers under the Evidence Act, at least one of whose signatures must be proven by affidavit of witness covering the matters noted ins. 49 of Part 5 of the Land Title Act.

Note to Item 2: Section 16(4) of the Power of Attorney Act does not specify a British Columbia lawyer. However, s. 29 of the Interpretation Act defines a lawyer as:

• “lawyer” means a practising lawyer as defined in section 1(1) of the Legal Profession Act;

Section 1(1) of the Legal Profession Act provides the following definitions:

• “practising lawyer” means a member in good standing who holds or is entitled to hold a practising certificate;
• “member” means a member of the society;
• “society” means the Law Society of British Columbia continued under section 2;

The adult and the witness(es) must all be in each other’s presence when the power of attorney is signed. The registrar will refuse to register the enduring power of attorney if the adult and the witness(es) signed the enduring power of attorney on different execution dates.

Execution by the Attorney (ss. 16 and 17)

An enduring power of attorney must be signed by the attorney whose signature must be witnessed by either:

1. a notary public, who is a member of the Society of Notaries Public of British Columbia; or
2. a British Columbia lawyer; or
3. if not witnessed by a British Columbia lawyer or a British Columbia notary public, two witnesses.

If the power of attorney is to be used for land title purposes, each attorney must file a statutory declaration declaring that the attorney was of age at the time of registration of the power of attorney (see Land Title Act, s. 51(3.1)). This requirement is in addition to the requirement for the attorney to sign the enduring power of attorney.

Affidavit of Execution

Remote Witnessing

Section 17.1 of the Power of Attorney Act authorizes the establishment by regulation of processes for signing enduring powers of attorney that are alternative to the process set out in ss. 16 and 17 of the Act. Section 2.1 of the Power of Attorney Regulation establishes an alternative process for remote witnessing of the execution of enduring powers of attorney by the adult and the attorney. To be valid for land title purposes, a remotely witnessed enduring power of attorney must meet the requirements prescribed by the Power of Attorney Regulation and the requirements of Part 5 of the Land Title Act (the “LTA”) with regard to witnessing of execution by the adult. Specifically, it must:

• be witnessed by a British Columbia lawyer or a British Columbia notary public;
• include a statement that the enduring power of attorney was signed and dated in accordance with the alternative process under the Power of Attorney Regulation;
• be signed and dated by signing and dating complete and identical copies of the enduring power of attorney in counterpart. The enduring power of attorney submitted to the land title office must include the enduring power of attorney that includes the signature of the witnessing officer and the copy of the enduring power of attorney that includes the signature of the adult and/or attorney, as applicable; and
• be accompanied by an affidavit under s. 49 of Part 5 of the LTA where execution by the adult is remotely witnessed. The LTA requires the individual who executes an instrument to appear before and be in the physical presence of an officer; it does not permit the officer to witness the execution from a different location. As the remote witnessing of an enduring power of attorney under the alternative process does not meet the LTA’s “physical presence” witnessing requirement, a s. 49 affidavit is required to satisfy the registrar that the witnessing of the adult’s execution of the enduring power of attorney is otherwise acceptable. The s. 49 affidavit must be from the officer who remotely witnessed the enduring power of attorney, as this is the individual who can attest to the information required under s. 49. See the “Affidavit of Execution” guidance below for information on the suggested form of affidavit when the adult’s execution of an enduring power of attorney has been remotely witnessed.

  A s. 49 affidavit is not required when the signature of the attorney on the enduring power of attorney is remotely witnessed, as the execution of the attorney does not need to meet the requirements of Part 5, LTA.

Affidavit of Execution

An affidavit of execution may be used:

• to cover the matters noted in s. 49 of the LTA in the event neither of the witnesses of the execution by an adult is an officer pursuant to the Evidence Act to ensure the enduring power of attorney has been executed and witnessed in accordance with s. 16(5) of the Power of Attorney Act and Part 5 of the LTA;
• by the witnessing officer when the execution by the adult is remotely witnessed in accordance with the alternative process under the Power of Attorney Regulation to ensure the execution of the enduring power of attorney is in accordance with Part 5 of the LTA.

The following describes common execution scenarios and the suggested form of affidavit for enduring powers of attorney that are to be used for land title purposes.

Execution by an Adult

Scenario A: Two witnesses who are not officers under the Evidence Act. The following form of affidavit is required from at least one of the witnesses to cover the matters under s. 49 of Part 5 of the LTA:

• 1. I am acquainted with the person named in the enduring power of attorney as the adult/donor.
• 2. I am acquainted with the signature of the adult/donor and believe that the signature subscribed to the instrument is the signature of the donor adult/donor.
• 3. The signature of the adult/donor was not certified by an officer under Part 5 of the Land Title Act, R.S.B.C. 1996, c. 250 because [set out reason].

Scenario B: A B.C. lawyer or B.C. notary public who remotely witnessed the execution by the adult in accordance with the alternative process under the Power of Attorney Regulation to cover the matters under s. 49 of Part 5 of the LTA:

• 1. I am 16 years of age or older and am acquainted with the person named in the instrument as the adult.
• 2. I am acquainted with the signature of [name of adult] and believe that the signature subscribed to the instrument is the signature of the adult.
• 3. The signature of the adult on the enduring power of attorney was remotely witnessed by me as the witnessing officer in accordance with the alternative process under the Power of Attorney Regulation, and this s. 49 affidavit is made to provide evidence of compliance with the requirements of Part 5 of the Land Title Act.

Effective Date of Enduring Powers of Attorney (s. 26)

Section 26(1) of the Power of Attorney Act provides:

• 26 (1) An enduring power of attorney is effective on the latest of

• (a) the date by which the enduring power of attorney has been signed both by the adult under section 16 and by an attorney under section 17,
• (b) a date stated in the enduring power of attorney as being its effective date, and
• (c) the date an event described in the enduring power of attorney as bringing the power of attorney into effect is confirmed to have occurred.

Land title forms already executed by an attorney under a deficient enduring power of attorney will have to be re-executed by the attorney subsequent to the deficiency being rectified. The re-execution by the attorney on the land title form is required because the previous execution by the attorney occurred at a date when the enduring power of attorney was not effective in accordance with s. 26.

Appointment of Alternate Attorney

Under s. 18(5) of the Power of Attorney Act, an enduring power of attorney that appoints an alternate attorney must set out:

1. the circumstances in which the alternate attorney is authorized to act in place of the attorney, including, for example, if the attorney is unwilling to act, dies, or is for any other reason unable to act; and
2. the limits or conditions, if any, on the exercise of authority by the alternate.

If an alternate attorney executes a land title form, the registrar will require satisfactory evidence, generally in the form of a statutory declaration, confirming that the circumstance contemplated in the power of attorney has occurred.

“Springing” or “Contingent” Enduring Powers of Attorney (s. 26)

Under s. 26(2) of the Power of Attorney Act, an enduring power of attorney that is effective after a specified event occurs must state in the enduring power of attorney how and by whom the event is to be confirmed.

The registrar requires that an instrument executed by way of a springing or contingent enduring power of attorney be accompanied by satisfactory evidence from the person named in the enduring power of attorney that the event stated in the enduring power of attorney has occurred.

Enduring Powers of Attorney Made in a Foreign Jurisdiction (Power of Attorney Regulation, B.C. Reg. 20/2011, s. 4)

An enduring power of attorney made in a jurisdiction outside British Columbia is deemed to be enduring if it is “made” by a person who was, at the time of its making, ordinarily resident:

1. in a jurisdiction outside British Columbia but within Canada; or
2. in a jurisdiction outside British Columbia but within the Unites States of America; the United Kingdom of Great Britain; and Northern Ireland, Australia, or New Zealand,

and is accompanied by a “Certificate of Extrajurisdictional Solicitor” completed by a solicitor in the jurisdiction in which the extrajurisdictional enduring power of attorney was made. See s. 4 of the Power of Attorney Regulation, B.C. Reg. 20/2011.

A power of attorney that has not been made within the jurisdictions prescribed in s. 4(2)(b)(ii) of the Power of Attorney Regulation is not effective in British Columbia as an enduring power of attorney.

As set out in Part 2, the “Certificate of Extrajurisdictional Solicitor” is required to confirm that foreign enduring powers of attorney were “validly made according to the laws of the jurisdiction in which the adult was ordinarily resident and in which the power of attorney was made”.

A “Certificate of Extrajurisdictional Solicitor” is required where:

1. the adult’s address is outside British Columbia (meaning they are not “ordinarily resident” in British Columbia), and
2. it is not evident the enduring power of attorney was made according to British Columbia laws (that is, it does not reference the British Columbia Power of Attorney Act and does not include the officer certification statement).

The registrar determines whether the “deemed” enduring power of attorney was made in an acceptable jurisdiction, in accordance with s. 4(2)(b) of the Power of Attorney Regulation, by referring to the accompanying “Certificate of Extrajurisdictional Solicitor”.

An enduring power of attorney that references the British Columbia Power of Attorney Act and includes the officer certification statement does not require a “Certificate of Extrajurisdictional Solicitor”, even if it was executed outside British Columbia and the adult’s address denotes they are not ordinarily resident in British Columbia. This is because an enduring power of attorney that references the British Columbia Power of Attorney Act, that also includes the officer certification statement (as this references the British Columbia Evidence Act and Land Title Act), is sufficient evidence to confirm the enduring power of attorney was “validly made” according to the laws of British Columbia.

Enduring powers of attorney that are accompanied by a “Certificate of Extrajurisdictional Solicitor” are defined in s. 4 of the Power of Attorney Regulation as a “deemed enduring power of attorney”. A “deemed enduring power of attorney” need only meet the requirements of s. 4 as the additional requirements in the Power of Attorney Act relate to an “enduring power of attorney” as opposed to a “deemed enduring power of attorney”. A “deemed enduring power of attorney” must still meet the requirements of s. 51 of the Land Title Act.

Scope of Attorney’s Power to Deal with Land

General Powers of Attorney in Form 1 or 2

A general power of attorney such as Form 1 or 2 under the Power of Attorney Act does not require express authority to transfer property. Such a power of attorney grants the attorney the power “to do on my behalf anything that I can lawfully do by an attorney”, subject only to such conditions and restrictions as may be set out in the power of attorney.

Limited, Special, or Restricted Powers of Attorney

A limited power of attorney (not in Form 1 or 2 under the Power of Attorney Act) giving authority to transfer property should include three elements or operations. These are the powers:

1. to sell;
2. to give effectual receipts and discharges for the purchase money; and
3. to execute a deed or conveyance.

Simple reference in a power of attorney to one of the three elements or operations is not sufficient to confer complete authority on an attorney, and the authority is limited to the single element or operation, whichever it may be. However, if a power of attorney authorizes two elements or stages, the attorney has authority to carry out the third element or operation. An attorney who is authorized to sell and convey also has authority to give receipts for the purchase money. An attorney who is authorized to sell and receive the purchase money is authorized to convey, because purchase money is not to be paid to the attorney unless the attorney makes the conveyance. Refer to the case annotations for Arpin v. LeClaire 1930 CanLII 321 (MB QB), and Re Rode’s Petition, 1968 CanLII 929 (BC SC), under this section of the Act.

Property Law Act Provisions

Power to Subdivide: Section 26 of the Property Law Act, R.S.B.C. 1996, c. 377 provides that, where a power of attorney gives an attorney power to dispose of land, the attorney may, unless the power of attorney expressly precludes it, subdivide the land and dedicate to the public a part of it necessary to obtain the approval of the approving officer under the Land Title Act and to complete the subdivision.

Attorney Cannot Sell to Self: Section 27 of the Property Law Act provides that an attorney cannot convey land owned by the donor to themselves unless the power of attorney expressly authorizes the attorney to do so or the donor ratifies the conveyance.

Procedural and Substantive Requirements for Acceptance of Powers of Attorney

Overview of Requirements

The registrar:

1. determines if the power of attorney document itself is acceptable for filing;
2. determines the extent of the powers granted to the attorney and whether the transaction contemplated in the instrument tendered for registration is authorized;
3. enters the donor’s name and the power of attorney number in the power of attorney index.

Criteria for Filing Non-Enduring Power of Attorney Document

Section 51 establishes the following criteria for non-enduring powers of attorney:

1. The power of attorney must contain the full name and address of the donor and the attorney.
2. The execution of a power of attorney must be witnessed or proved in the manner required for instruments by Part 5.

   Where a donor owns multiple titles to land under multiple name variations, the power of attorney instrument may identify the donor by all of the variations (for example, “Mary Smith also known as Mary Jane Smith”). This practice prevents having to prepare a separate power of attorney for each name variation on title. Where a power of attorney describes the donor with multiple name variations, each name variation must be stated below the donor’s execution required by Part 5. The officer is then certifying that the donor with multiple name variations has acknowledged to the officer they are the donor with the variations described.

   Each name variation of the donor will be added as a separate principal in the Power of Attorney index maintained in accordance with s. 53.

3. The power of attorney must be accompanied by proof, normally a statutory declaration by the attorney, that the attorney was 19 years of age at the time of execution. Corporate attorneys are not required to provide proof of age.
4. The original or certified copy of the power of attorney must be filed with the registrar as set out in s. 51(1).

Criteria for Filing Enduring Power of Attorney Document

Section 51 establishes the following criteria for enduring powers of attorney:

1. The power of attorney must contain the full name and address of the adult and the attorney.
2. Enduring powers of attorney are created under Part 2 of the Power of Attorney Act. Note that s. 8 of that Act was repealed effective September 1, 2011.
3. Enduring powers of attorney must be signed by both the adult and the attorney. Execution by the adult must be before a British Columbia lawyer or notary public or before two witnesses. Where execution is not before an officer, at least one of the witnesses must swear an affidavit of execution that meets the requirements s. 49 of Part 5 of the Land Title Act.

   Where a donor owns multiple titles to land under multiple name variations, the power of attorney instrument may identify the donor by all of the variations (for example, “Mary Smith also known as Mary Jane Smith”). This practice prevents having to prepare a separate power of attorney for each name variation on title. Where a power of attorney describes the donor with multiple name variations, each name variation must be stated below the donor’s execution required by Part 5. The officer is then certifying that the donor with multiple name variations has acknowledged to the officer they are the donor with the variations described.

   Each name variation of the donor will be added as a separate principal in the Power of Attorney index maintained in accordance with s. 53.

4. Enduring powers of attorney may be granted to a child. Powers granted to a child may not be exercised until the child becomes an adult. Proof of age can be as of the date of registration, rather than as of the date of execution.
5. For enduring powers of attorney, a named attorney becomes an attorney only after properly signing the power of attorney. Application may be made to file these powers of attorney before all attorneys have signed and proof of age is only required for attorneys who have signed. Attorneys who have not signed the power of attorney are not entered in the power of attorney index.
6. The conditions set out in paragraphs (4), (5) and (6) apply only to enduring powers of attorney executed after September 1, 2011.
7. Enduring powers of attorney and representation agreements executed before September 1, 2011, will still be accepted for filing.
8. The power of attorney must be accompanied by proof, normally a statutory declaration by the attorney, that the attorney was 19 years of age at the time of execution.
9. The original or certified copy of the power of attorney must be filed with the registrar as set out in s. 51(1).

Corporate Donors

Attorney Appointed by Corporation

Section 144 of the Business Corporations Act, S.B.C. 2002, c. 57 provides that a corporation may empower a person as its attorney for the execution of deeds or other instruments on behalf of the corporation, and any instrument so executed binds the corporation. Also, s. 6(2) of the Power of Attorney Act provides that “an instrument executed by an attorney on behalf of the corporation is, if it comes within the scope of the attorney’s authority, binding on the corporation and of the same effect as if it had been executed by the corporation.”

Only One Authorized Signatory Needs to Be Certified

Note that under s. 44(3) of the Act, where more than one authorized signatory for a corporation executes an instrument, only one of the signatures requires officer certification.

Appointing an Attorney by Virtue of Office

Appointing an attorney by virtue of office has been a longstanding practice. Land title offices have accepted these appointments, in the past, primarily from Schedule A banks and other financial institutions where a local officer was required to execute instruments under seal.

The appointments were made, first by appointing the attorney generally by reference to the office, and then by naming the individuals who occupied the office from time to time.

The registrar accepted instruments executed under these powers of attorney provided that:

1. the individual who executed the instrument under the power of attorney was a person listed as an officer on a certificate filed by the bank; and
2. the certificate was either attached to the power of attorney naming the office or referred to the running serial number of a filed power of attorney; and
3. the individual who executed the instrument had filed a statutory declaration as required under s. 51(3) of the Act respecting the individual’s age; and
4. the individual’s statutory declaration contained a statement that the individual held the office named in the power of attorney; or
5. the office named in the power of attorney was typed or printed under or beside the signature of the individual acting as attorney in the execution item of the instrument.

The registrar also accepted a power of attorney without the certificate referred to in paragraph 1 if the power of attorney contained words protecting third parties. The following is an example of such words:

Any action or actions taken or document or documents executed hereunder by any persons who purport to occupy the said positions as of the date of such action or actions or of the execution of such document or documents shall be accepted as having been done or executed by persons who did in fact occupy the said positions as of the date of such action or actions or of the execution of such document or documents without any proof thereof being required by any other person or persons.

There is considerable doubt about the validity of the appointment under a power of attorney by virtue of office. However, any corporation, including a Schedule A bank or other financial institution, may execute a conveyancing instrument by its authorized signatory who may affix the seal of the corporation if execution under seal is required. Accordingly, the registrar will no longer accept for filing any power of attorney in which the attorney is appointed by virtue of office.

Representation Agreements

Section 44.3 of the Representation Agreement Act states that, if a representation agreement executed before September 1, 2011, authorized a representative to exercise the powers of an attorney, that part of the representation agreement is deemed to be an enduring power of attorney under Part 2 of the Power of Attorney Act on and after September 1, 2011.

Under s. 51(2.1)(b) of the Land Title Act, enduring powers of attorney in a representation agreement executed before September 1, 2011, are accepted by the land title office in the same manner as an enduring power of attorney signed under s. 16(2) of the Power of Attorney Act. A representation agreement executed after September 1, 2011, may not be used for land title purposes.

Submissions

On the Power of Attorney Application, select Nature of Interest, Representation Agreement, and attach an image of the original representation agreement.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See s. 56 regarding the expiry of a power of attorney filed in the land title office after three years from its execution date. Several exceptions apply, and the effect of s. 56 may be expressly excluded in the power of attorney.

Also see s. 56 of this Act and Parts 2 and 3 of the Power of Attorney Act for a further discussion of enduring powers of attorney.

For background information about the 2011 amendments to s. 51 and additional links to standard forms for enduring powers of attorney and representation agreements, see www2.gov.bc.ca/gov/content/health/managing-your-health/incapacity-planning.

For practice requirements with respect to enduring powers of attorney, see the practice material on enduring powers of attorney under s. 51 of the Act “Two Types of Powers of Attorney” in this chapter.

For further practice notes and related materials on representation agreements, see s. 47.1 of the Act.

See s. 7 of the Power of Attorney Act, which provides that a deed executed by an attorney under the attorney’s seal on behalf of a donor is, if it comes within the scope of the attorney’s authority, binding on the donor and of the same effect as if it were under the donor’s seal.

See s. 14 of the Trustee Act, which states that a trustee who is engaged in war service who intends to be out of the province for a period exceeding one month may delegate authority by power of attorney to any person, including a trust company, notwith­standing any rule of law or equity to the contrary.

See Di Castri, Registration of Title to Land, vol. 2, §11:2.

CASE LAW

Scope of Power of Attorney

Under a power of attorney, the attorney had specific authority to “sell and absolutely dispose of” and “mortgage and borrow money upon” certain land and securities, and the general power to “execute and deliver all instruments capable of registration”. The attorney did not have the power to turn the lands over to another on trusts never contemplated in the power of attorney. Powers conferred under a power of attorney must be strictly construed. Where a power of attorney gives specific powers, and then gives general powers, the general powers will be construed as relating to the specific powers and confined to them (Arpin v. LeClaire, 1930 CanLII 321 (MB QB)).

A power of attorney contained specific authority to sell certain lands but did not empower the attorney, in so many words, to convey the lands. Instead, it empowered the attorney “to do and execute all acts, deeds, matters and things necessary to be done in and about the premises”. While each case must be decided on its particular facts, it was clear that in this case, the general words in the power of attorney empowered the attorney to convey (Re Rode’s Petition, 1968 CanLII 929 (BC SC)).

Effect of Forgery

Three people purporting to be the respondents father, mother, and son appeared before a lawyer and signed documents granting powers of attorney to the son’s brother. The brother used those powers of attorney to change the ownership of the respondents’ home and to grant a mortgage to the petitioner bank. The mortgage funds were quickly spent and the mortgage was seriously in default. The bank sought foreclosure and related remedies. The bank stated that under s. 51(5) of the Act the powers of attorney were valid even if they were forged because they were “certified” and “filed” in the land title office. The court found that, because three impostors had appeared before the lawyer with false identification documents in the name of the three respondents, the powers of attorney were forgeries and the mortgage was invalid. Section 51(5) does not render forged documents valid even if they are “certified”. Subsection (5) follows after a series of provisions in s. 51 that provide for the certifying and use of true copies of original documents. In this context, “certification” refers to certain acts in connection with the execution of an instrument. It is not a certification as to the validity of the instrument itself, and it would be unnatural and out of accord with s. 51 as a whole for “certified” to carry a different connotation in subsection (5) than in the remainder of the section. The thrust of s. 51 as a whole is to provide for circumstances in which certified copies may be used in place of original documents (Bank of Montreal v. Chan, 2004 BCSC 841).