56 Power Of Attorney Valid For 3 Years Only

PRACTICE

Time Limitations on Powers of Attorney

Limitations in s. 56

Various amendments to s. 56 since 1978, when this section was originally enacted, have affected the lifetime of powers of attorney. These amendments are summarized below.

Power of Attorney Valid for Three Years from Execution Date

Section 56(1) of the Act provides that a power of attorney filed in the land title office on or after October 31, 1979, is not valid for land title purposes three years after its date of execution (not filing). However, under s. 56(2), s. 56(1) does not invalidate a dealing, otherwise valid, registered before October 31, 1979. Nor does s. 56(1) invalidate dealings, otherwise valid, entered into within three years after the date of execution of a valid power of attorney. This last exception suggests that a dealing made within the three years may still be registered after this period. In such cases, if the power of attorney has not been filed, it can be filed to support the “in-time dealing”.

Enduring Powers of Attorney

As defined in s. 1 of the Land Title Act, an enduring power of attorney is one made under Part 2 of the Power of Attorney Act. Enduring powers of attorney remain valid for land title purposes under s. 56(3) of the Land Title Act until they are terminated by an order filed in the land title office or by another means.

Contracting Out of s. 56(1)

Section 56(1) allows a donor to exclude the application of the three-year limitation on the effectiveness of a power of attorney.

Corporations Not Bound by Three-Year Rule

Section 56(5) permits powers of attorney executed by a corporation after July 30, 1981, to continue to be valid after expiry of the three-year period referred to in s. 56(1).

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Enduring Powers of Attorney

Part 2 of the Power of Attorney Act provides for the making of enduring powers of attorney. As defined in s. 10 of that Act, an “enduring power of attorney” means a power of attorney

• (a) in which an adult authorizes an attorney to
  • (i) make decisions on behalf of the adult, or
  • (ii) do certain things
• in relation to the adult’s financial affairs, and
• (b) that continues to have effect while, or comes into effect when, the adult is incapable.

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 at “Two Types of Powers of Attorney” in this chapter.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, paras. 360, 362, and 739.

CASE LAW

The appellant received a power of attorney from his aunt to be exercised “during any subsequent mental infirmity” on her part. Six years later, the aunt moved to a long-term care facility after becoming infirm from dementia. The appellant applied to register the sale of the aunt’s condominium to a third party. The executed power of attorney was submitted to the land title office with the application to register a freehold transfer and mortgage. The registrar rejected the documents on the basis that the power of attorney was not an enduring one under s. 8(1) of the Power of Attorney Act (now Parts 2 and 3) and therefore that it had expired. On appeal to the Supreme Court, the court agreed with the registrar. In overturning that decision, the Court of Appeal found that if a person’s authority to exercise a power of attorney is subject to a donor’s subsequent mental infirmity and that condition is set out in the instrument that creates the power, the attorney’s authority continues after the subsequent mental infirmity even though that condition did not exist at the time the power of attorney was executed. The use of the word “continue” in s. 8(1) of the Act does not deal with powers of attorney that spring into effect upon the happening of an event. Rather, s. 8(1) allows a validly executed power of attorney to continue if the instrument complies with the requirements of the Act. In this case, the appellant’s authority to transfer the aunt’s condominium was created at the moment the power of attorney was executed even though, on the words of the power of attorney itself, the condition on which the power could be exercised, the aunt’s subsequent mental infirmity, had not yet come into existence. The court found that while the commencement of mental infirmity might come and go, the question would always be, as it is with a power of attorney that operates only in certain circumstances, whether that circumstance existed at the time of the transaction entered into by the attorney. As the affidavit evidence did not establish the aunt’s condition at the time the documents were submitted for registration, the court referred the matter back to the trial court to determine whether the aunt was mentally infirm at the relevant times (Goodrich v. British Columbia (Registrar of Land Titles), 2004 BCCA 100).