Definitions

1   In this Part:

"agent" includes an attorney acting under a power of attorney;

"knowledge" includes knowledge of circumstances that would put a reasonable person on inquiry;

"terminated", when used with reference to the status of an agent's authority, means that the authority has been terminated by revocation, or by operation of law or both.

Application

2   (0.1) This Part does not apply to an enduring power of attorney under Part 2.

(1) Sections 3 and 4 do not apply to agency relationships that

(a) are created by section 7 of the Partnership Act, or

(b) arise under common law out of the relationship of partners to a firm and to each other.

(2) For the purposes of this Act, if a person has knowledge of the occurrence of an event that has the effect of terminating the authority of an agent, that person is deemed to have knowledge of the termination of the authority.

Liability of agent

3   If an agent purports to act on behalf of a principal at a time when the agent's authority to do so has been terminated and

(a) the act is within the scope of the agent's former authority, and

(b) the agent has no knowledge of the termination,

then, for the purpose of determining the liability of the agent for the act, the agent is deemed to have had the authority to so act.

Effect of termination

4   (1) If

(a) the authority of an agent has been terminated, and

(b) a person who has no knowledge of the termination purports to deal with the principal through the agent,

then, for the purpose of determining the legal rights and obligations of the principal in relation to that person, the transaction is, in favour of that person, deemed to be as valid as if the authority had existed.

(2) Despite subsection (1), if the principal has

(a) by express revocation terminated the authority of an agent, and

(b) given notice of the termination to the agent,

the liability of the principal to any person for the subsequent acts of the agent must be determined without regard to this Act.

(3) If the authority of an agent to act on behalf of the agent's principal has been terminated, but

(a) the agent purporting to act for the principal enters into a transaction with a person (called in this section "the intermediate party"),

(b) the rights of another person (called in this section "the stranger") are dependent on the validity of the transaction entered into by the agent with the intermediate party, and

(c) the stranger had, at the material time, no knowledge of the termination of the authority of the agent,

then, for the purpose of determining the legal rights and obligations of the principal in relation to the stranger, the intermediate party is conclusively deemed to have had no knowledge of the termination.

Representation grant issued to attorney

5   If a representation grant, within the meaning of the Wills, Estates and Succession Act, has been issued to a person as attorney for some other person, sections 1 to 4 apply as if the payments made or acts done under the representation grant had been made or done under a power of attorney of which that other person was the donor.

Corporation may appoint attorney

6   (1) A corporation within the legislative jurisdiction of the Legislature may, by instrument in writing under its corporate seal, empower a person, in respect of a specified matter or purpose, as its attorney, to execute deeds or documents on its behalf.

(2) 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.

Deeds

7   A deed executed by an attorney under the seal of the attorney on behalf of a donor, whether an individual or corporation,

(a) is binding on the donor if it comes within the scope of the attorney's authority, and

(b) is of the same effect as if it were under the seal of the donor.

Repealed

8   [Repealed 2007-34-37.]

Short form

9   (1) A general power of attorney may be in Form 1 or Form 2 of the Schedule.

(2) A general power of attorney, in Form 1, confers authority on the attorney and in Form 2 confers authority on more than one attorney acting separately or acting together, as the case may be, to do on behalf of the donor anything that the donor can lawfully do by an attorney, subject to the conditions and restrictions, if any, that are contained in the power of attorney.

(3) This section applies to a power of attorney made before, on or after October 14, 1987.

Definitions

10   In this Part and Part 3:

"adult" means an individual who is 19 years of age or older;

"attorney" means a person who

(a) is authorized under an enduring power of attorney to act as an attorney, and

(b) has signed the enduring power of attorney under section 17;

"court" means the Supreme Court of British Columbia;

"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;

"financial affairs" includes an adult's business and property, and the conduct of the adult's legal affairs;

"health care" has the same meaning as in the Health Care (Consent) and Care Facility (Admission) Act;

"health care provider" means a person who is licensed, certified or registered under a prescribed Act to provide health care;

"near relative" means an adult child, a parent, a grandparent, an adult sibling or any other adult relation by birth or adoption;

"personal care" includes the following matters in respect of an adult:

(a) diet, dress and hygiene;

(b) health related activities, including medication;

(c) social, recreational, employment and educational activities;

(d) shelter, including admission to a care facility under the Health Care (Consent) and Care Facility (Admission) Act;

"qualified health care provider" means a medical practitioner or a member of a prescribed class of health care providers;

"spouse" means a person who

(a) is married to another person and is not living separate and apart, within the meaning of the Divorce Act (Canada), from the other person, or

(b) is living with another person in a marriage-like relationship.

Adults presumed to be capable

11   (1) Until the contrary is demonstrated, an adult is presumed to be capable of

(a) making decisions about the adult's financial affairs, and

(b) understanding the nature and consequences of making, changing or revoking an enduring power of attorney.

(2) An adult's way of communicating with others is not grounds for deciding that the adult is incapable of making the decisions or having the understanding referred to in subsection (1).

Adult may make enduring power of attorney unless incapable

12   (1) An adult may make an enduring power of attorney unless the adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney.

(2) An adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney if the adult cannot understand all of the following:

(a) the property the adult has and its approximate value;

(b) the obligations the adult owes to the adult's dependants;

(c) that the adult's attorney will be able to do on the adult's behalf anything in respect of the adult's financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney;

(d) that, unless the attorney manages the adult's business and property prudently, their value may decline;

(e) that the attorney might misuse the attorney's authority;

(f) that the adult may, if capable, revoke the enduring power of attorney;

(g) any other prescribed matter.

What enduring power of attorney may do

13   (1) An adult may, in an enduring power of attorney, authorize an attorney to

(a) make decisions on behalf of the adult, or

(b) do anything that the adult may lawfully do by an agent

in relation to the adult's financial affairs.

(2) An adult may grant general or specific powers to an attorney.

Enduring power of attorney must include provision for continued authority

14   An adult who makes an enduring power of attorney must state in the enduring power of attorney

(a) whether the attorney may exercise authority

(i) while the adult is capable, or

(ii) only while the adult is incapable

of making decisions about the adult's financial affairs, and

(b) that the authority of the attorney continues despite the adult's incapability.

What enduring power of attorney must not do

15   A direction to an attorney to do either or both of the following is not valid and must be severed from an enduring power of attorney:

(a) to do anything that is prohibited by law;

(b) to omit to do anything that is required by law.

Adult must sign enduring power of attorney

16   (1) Subject to subsections (2) to (6), an enduring power of attorney must be in writing and signed and dated by

(a) the adult in the presence of 2 witnesses, and

(b) both witnesses in the presence of the adult.

(2) Subject to subsection (3), an enduring power of attorney may be signed on behalf of an adult if

(a) the adult is physically incapable of signing the enduring power of attorney,

(b) the adult is present and directs that the enduring power of attorney be signed, and

(c) the signature of the person signing the enduring power of attorney on behalf of the adult is witnessed in accordance with this section, as if that signature were the adult's signature.

(3) The following persons must not sign an enduring power of attorney on behalf of an adult:

(a) a witness to the signing of the enduring power of attorney;

(b) a person prohibited from acting as a witness under subsection (6).

(4) Only one witness is required if the witness is a lawyer or a member in good standing of the Society of Notaries Public of British Columbia.

(5) If an enduring power of attorney is to be effective for the purposes of the Land Title Act, the enduring power of attorney must be executed and witnessed in accordance with the Land Title Act.

(6) The following persons must not act as a witness to the signing of an enduring power of attorney:

(a) a person named in the enduring power of attorney as an attorney;

(b) a spouse, child or parent of a person named in the enduring power of attorney as an attorney;

(b.1) an employee or agent of a person named in the enduring power of attorney as an attorney, unless the person named as an attorney is

(i) a lawyer,

(ii) a member in good standing of the Society of Notaries Public of British Columbia,

(iii) the Public Guardian and Trustee, or

(iv) a financial institution authorized to carry on trust business under the Financial Institutions Act;

(c) a person who is not an adult;

(d) a person who does not understand the type of communication used by the adult, unless the person receives interpretive assistance to understand that type of communication.

Attorney must sign enduring power of attorney

17   (1) Before a person may exercise the authority of an attorney granted in an enduring power of attorney, the person must sign the enduring power of attorney in the presence of 2 witnesses.

(2) The signing of an enduring power of attorney by an attorney is not required to be in the presence of the adult or any other attorney.

(3) Section 16 (4) and (6) applies to witnesses of an attorney's signature and, for this purpose, the reference in section 16 (6) to the adult is to be read as a reference to the attorney.

(4) A person named as an attorney in an enduring power of attorney who has not signed the enduring power of attorney is not required to give notice of any kind that the person is unwilling or unable to act as an attorney.

(5) If a person named as an attorney does not sign the enduring power of attorney, the authority of any other attorney is not affected, unless the enduring power of attorney states otherwise.

Signing enduring power of attorney — alternative process

17.1   (1) A requirement in section 16 (1) that a person sign and date an enduring power of attorney in the presence of another person is satisfied if the enduring power of attorney is signed and dated in accordance with an alternative process established by regulation, if any, for witnessing the signing and dating.

(2) The requirement in section 17 (1) that a person sign an enduring power of attorney in the presence of another person is satisfied if the enduring power of attorney is signed in accordance with an alternative process established by regulation, if any, for witnessing the signing.

Who may act as attorney

18   (1) An adult may name one or more of the following persons as an attorney:

(a) an individual, other than an individual who

(i) provides personal care or health care services to the adult for compensation, or

(ii) is an employee of a facility in which the adult resides and through which the adult receives personal care or health care services;

(b) the Public Guardian and Trustee;

(c) a financial institution authorized to carry on trust business under the Financial Institutions Act.

(2) Despite subsection (1) (a), an individual described in subsection (1) (a) (i) or (ii) who is a child, parent or spouse of the adult may be named as an attorney.

(3) If an individual who is not an adult is named as an attorney, the individual must not act as attorney until that individual is an adult.

(4) An adult who names more than one attorney may assign to each of them

(a) a different area of authority, or

(b) all or part of the same area of authority.

(5) If all or part of the same area of authority is assigned to more than one attorney, the attorneys must act unanimously in exercising the authority, unless the adult does one or more of the following in the enduring power of attorney:

(a) describes the circumstances in which the attorneys need not act unanimously;

(b) sets out how a conflict between attorneys is to be resolved;

(c) authorizes an attorney to act only as an alternate attorney and sets out

(i) the circumstances in which the alternate 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

(ii) the limits or conditions, if any, on the exercise of authority by the alternate.

Duties of attorney

19   (1) An attorney must

(a) act honestly and in good faith,

(b) exercise the care, diligence and skill of a reasonably prudent person,

(c) act within the authority given in the enduring power of attorney and under any enactment, and

(d) keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult.

(2) When managing and making decisions about the adult's financial affairs, an attorney must act in the adult's best interests, taking into account the adult's current wishes, known beliefs and values, and any directions to the attorney set out in the enduring power of attorney.

(3) An attorney must do all of the following:

(a) to the extent reasonable, give priority when managing the adult's financial affairs to meeting the personal care and health care needs of the adult;

(b) unless the enduring power of attorney states otherwise, invest the adult's property only in accordance with the Trustee Act;

(c) to the extent reasonable, foster the independence of the adult and encourage the adult's involvement in any decision-making that affects the adult;

(d) not dispose of property that the attorney knows is subject to a specific testamentary gift in the adult's will, except if the disposition is necessary to comply with the attorney's duties;

(e) to the extent reasonable, keep the adult's personal effects at the disposal of the adult.

(4) An attorney must keep the adult's property separate from the attorney's own property.

(5) Unless the enduring power of attorney states otherwise, subsection (4) does not apply to property that

(a) is jointly owned by the adult and the attorney as joint tenants or otherwise, or

(b) has been substituted for, or derived from, property described in paragraph (a).

Attorney's powers

20   (1) An attorney may make a gift or loan, or charitable gift, from the adult's property if the enduring power of attorney permits the attorney to do so or if

(a) the adult will have sufficient property remaining to meet the personal care and health care needs of the adult and the adult's dependants, and to satisfy the adult's other legal obligations, if any,

(b) the adult, when capable, made gifts or loans, or charitable gifts, of that nature, and

(c) the total value of all gifts, loans and charitable gifts in a year is equal to or less than a prescribed value.

(2) An attorney may receive a gift or loan under subsection (1) if the enduring power of attorney permits.

(3) Permissions under subsections (1) and (2)

(a) must be express, and

(b) may be in relation to a specific gift or loan, or charitable gift, or to gifts or loans, or charitable gifts, generally.

(4) An attorney may retain the services of a qualified person to assist the attorney in doing anything the adult has authorized the attorney to do.

(5) An attorney may, in an instrument other than a will,

(a) change a beneficiary designation made by the adult, if the court authorizes the change, or

(b) create a new beneficiary designation, if the designation is made in

(i) an instrument that is renewing, replacing or converting a similar instrument made by the adult, while capable, and the newly designated beneficiary is the same beneficiary that was designated in the similar instrument, or

(ii) a new instrument that is not renewing, replacing or converting a similar instrument made by the adult, while capable, and the newly designated beneficiary is the adult's estate.

(6) Subject to subsection (7), a person having custody or control of property belonging to an adult must deliver the property promptly, on request of the adult's attorney, to the attorney.

(7) A person must not deliver, to an adult's attorney, a will made by the adult if the adult has given instructions to a lawyer or notary public who holds the adult's will, or the will contains instructions, prohibiting delivery of the will to the attorney.

Attorney must not make a will for adult

21   An attorney must not make or change a will for the adult for whom the attorney is acting, and any will or change that is made for an adult by the adult's attorney has no force or effect.

Liability of attorney

22   An attorney who acts in the course of the attorney's duties is not liable for any loss or damage to the adult's financial affairs if the attorney complies with

(a) the duties of the attorney as set out in section 19 and the enduring power of attorney,

(b) any directions of the court given under section 36 (1) (a), and

(c) any other duty that may be imposed by law.

No delegation by attorney

23   (1) Unless the enduring power of attorney states otherwise, an attorney must not delegate any decision-making authority given to the attorney in an enduring power of attorney.

(2) Despite subsection (1), unless the enduring power of attorney states otherwise, an attorney may delegate all or part of the attorney's authority in relation to investment matters to a qualified investment specialist, including a mutual fund manager, if done in accordance with,

(a) if the attorney is the Public Guardian and Trustee, the Public Guardian and Trustee Act, or

(b) in any other case, section 15.5 of the Trustee Act.

Payment and expenses of attorney

24   (1) An attorney must not be compensated for acting as an adult's attorney unless the enduring power of attorney expressly authorizes the compensation and sets the amount or rate.

(2) An attorney may be reimbursed from an adult's property for reasonable expenses properly incurred in acting as the adult's attorney.

Resignation of attorney

25   (1) In this section, "close friend", in respect of an adult who has made an enduring power of attorney, means another adult who has a long-term, close personal relationship involving frequent personal contact with the adult, but does not include a person who receives compensation for providing personal care or health care to the adult.

(2) An attorney may resign by giving written notice to the adult and any other attorneys named in the enduring power of attorney.

(3) In addition to the persons referred to in subsection (2), if the adult is incapable of making decisions at the time the attorney resigns, the attorney must give written notice of the resignation to a spouse, near relative or, if known to the attorney, close friend of the adult.

(4) The resignation of an attorney is effective

(a) when notice has been given under this section, or

(b) on a later date specified in the notice.

When enduring power of attorney is effective

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.

(2) If the enduring power of attorney, or a provision of it, is effective after a specified event occurs, the adult must state in the enduring power of attorney how and by whom the event is to be confirmed.

(3) If the adult specifies that the enduring power of attorney is effective when the adult is incapable of making decisions about the adult's financial affairs, and the person named to confirm the adult's incapability is incapable, unwilling or unable to act, a qualified health care provider may confirm whether the adult is incapable.

Acting when enduring power of attorney applies

27   (1) A capable adult may do anything that the adult has authorized an attorney to do, regardless of whether the enduring power of attorney is in effect.

(2) Subject to section 19 (2) and (3) (c), the attorney may act within the attorney's authority, despite the objections of the adult at the time of the act, if the adult is incapable when making those objections.

Changing or revoking enduring powers of attorney

28   (1) Subject to any limits or conditions in the enduring power of attorney, and unless the adult is incapable of understanding the nature and consequences of doing so, an adult who has made an enduring power of attorney may change or revoke the enduring power of attorney.

(2) After changing or revoking an enduring power of attorney, the adult must give written notice to each attorney.

(3) A change must be in writing and must be signed by the adult in the same manner as an enduring power of attorney under section 16.

(4) A change or revocation is effective when notice is given under subsection (2) or on a later date stated in the notice.

(5) A change to an enduring power of attorney is binding on an attorney who receives notice of the change, unless the attorney resigns under section 25.

When authority of attorney is suspended or ends

29   (1) The authority of an attorney is suspended in any circumstances set out in an enduring power of attorney, for as long as those circumstances continue.

(2) The authority of an attorney ends

(a) if the enduring power of attorney is terminated,

(b) if the provisions of the enduring power of attorney that give authority to the attorney are revoked,

(c) if the attorney resigns in accordance with section 25, or

(d) if the attorney

(i) is the adult's spouse and their marriage or marriage-like relationship ends,

(ii) becomes incapable or dies,

(iii) is bankrupt,

(iv) is a corporation and the corporation dissolves, winds up or ceases to carry on business, or

(v) is convicted of a prescribed offence or an offence in which the adult was the victim.

(3) Subsection (2) (d) (i) does not apply if the enduring power of attorney states that the authority of the attorney continues regardless of whether the marriage or marriage-like relationship ends.

(4) A marriage ends for the purposes of this section on the date that the parties to the marriage are separated within the meaning of section 3 (4) of the Family Law Act.

(5) A marriage-like relationship ends for the purposes of this section on the date that the parties to the marriage-like relationship are separated within the meaning of section 3 (4) of the Family Law Act.

(6) If the authority of an attorney ends under subsection (2), any remaining attorneys may continue to act unless the enduring power of attorney states otherwise.

(7) Anything lawfully done by an attorney on behalf of the adult, including making an agreement, remains binding on the adult after the authority of the attorney ends.

When enduring power of attorney is suspended or terminates

30   (1) If an adult becomes incapable after making an enduring power of attorney, any authority given to an attorney under the enduring power of attorney continues.

(2) An adult may set out in an enduring power of attorney any circumstances in which the enduring power of attorney is suspended, and, if those circumstances exist, the enduring power of attorney is suspended for as long as those circumstances continue.

(3) An enduring power of attorney is suspended in accordance with the Patients Property Act.

(4) An enduring power of attorney terminates

(a) according to the terms of the enduring power of attorney,

(b) if the adult who made the enduring power of attorney dies,

(c) if the court terminates the enduring power of attorney under section 36 (5),

(d) if the enduring power of attorney is terminated under section 19 or 19.1 of the Patients Property Act, or

(e) if the enduring power of attorney is revoked.

Improper exercise of authority

31   (1) In this section, an exercise of authority by an attorney is improper if, at the time the attorney acts,

(a) the authority of the attorney is suspended or has ended, or

(b) the enduring power of attorney or the provision of it under which the attorney acts is not in effect, or is suspended, terminated or invalid.

(2) An attorney is deemed to have had authority to act under an enduring power of attorney, and is not liable for acting without authority, if the attorney

(a) exercises authority improperly,

(b) does not know, and could not reasonably have known, that the exercise of authority was improper, and

(c) would have had authority to act if the applicable circumstances described in subsection (1) did not exist.

(3) If an attorney exercises authority improperly, the action is deemed to be valid and binding on the adult in respect of persons affected by the exercise of the authority who do not know and have no reason to believe that the exercise of authority is improper.

Access to information

32   (1) An attorney may request information and records respecting the adult for whom the attorney is acting, if the information or records relate to

(a) the incapability of the adult, or

(b) an area of authority granted to the attorney.

(2) An attorney has the same right to information and records described under subsection (1) as does the adult for whom the attorney is acting.

(3) A qualified health care provider or other person who is responsible for assessing the adult's incapability has the right to all the information necessary to enable the performance of the qualified health care provider's or other person's duties under this Act or an enduring power of attorney.

(4) Any person who has custody or control of information that a qualified health care provider or other person is entitled to under subsection (3) must disclose that information to the qualified health care provider or other person.

(5) Subsection (4) overrides

(a) any claim of confidentiality or privilege, except a claim based on solicitor-client privilege, and

(b) any restriction in an enactment or the common law about the disclosure or confidentiality of information, except a restriction in section 51 of the Evidence Act.

Disclosing information

33   An attorney must not disclose information or records obtained in the exercise of the attorney's authority except to the extent necessary to

(a) perform the attorney's duties,

(b) make a report to the Public Guardian and Trustee under section 34 (2) or comply with a requirement of the Public Guardian and Trustee, or

(c) make an application to, or comply with an order of, the court.

Reporting to Public Guardian and Trustee

34   (1) In this section, "abuse" and "neglect" have the same meaning as in the Adult Guardianship Act.

(2) Any person may make a report to the Public Guardian and Trustee if the person has reason to believe that

(a) an adult is, or was at the time, incapable of making, changing or revoking an enduring power of attorney,

(b) fraud, undue pressure or some other form of abuse or neglect is being or was used to induce an adult to make, change or revoke an enduring power of attorney, or

(c) an attorney is

(i) abusing or neglecting the person for whom the attorney is acting,

(ii) incapable of acting as an attorney, or

(iii) otherwise failing to comply with an enduring power of attorney or with the duties of an attorney.

(3) If a person makes a report, the Public Guardian and Trustee must promptly review the report and may do one or more of the following:

(a) conduct an investigation to determine the validity of the report, and, if an investigation is conducted, the Public Guardian and Trustee may advise the person who made the report of the outcome;

(b) apply to the court for an order described in section 36;

(c) advise the person who made the report that the person may apply to the court for an order described in section 36;

(d) make a report under section 46 of the Adult Guardianship Act;

(e) take steps under the Patients Property Act to become a committee or take steps under the Adult Guardianship Act to become a statutory property guardian;

(f) take no action, or take any action that the Public Guardian and Trustee considers necessary.

(4) Unless the person acts falsely and maliciously, no action for damages may be brought against a person for

(a) making a report to the Public Guardian and Trustee under this section, or

(b) assisting in an investigation conducted by the Public Guardian and Trustee under this Act.

Investigations by Public Guardian and Trustee

35   (1) If the Public Guardian and Trustee has reason to believe that any of the circumstances set out in section 34 (2) exist, the Public Guardian and Trustee may conduct an investigation, regardless of whether a report has been made under that section.

(2) After conducting an investigation, the Public Guardian and Trustee may do anything set out in section 34 (3) (b) to (f).

Court directions and orders

36   (1) On application by an attorney, the court may

(a) give directions respecting the scope of an attorney's powers and duties, and

(b) make an order directing a person to release information to the attorney for the purpose of allowing the attorney to exercise the attorney's authority under this Act.

(2) On application by a person, the court may make an order that another person release information to the applicant if the court considers that the information is necessary to determine the incapability of an adult who is making, or who has made, an enduring power of attorney.

(3) On application by the Public Guardian and Trustee or an attorney, the court may make an order that an enduring power of attorney is valid despite a defect in the signing of the enduring power of attorney.

(4) On application by the Public Guardian and Trustee, the court may make any order that the court considers necessary to assist the Public Guardian and Trustee in carrying out the Public Guardian and Trustee's duties and powers under this Act, including an order directing a person to release information to the Public Guardian and Trustee for the purposes of an investigation.

(5) On application by the Public Guardian and Trustee or a person who made a report to the Public Guardian and Trustee under section 34, the court may make any order that the court considers necessary, including an order

(a) to confirm a change to, or the revocation of, an enduring power of attorney,

(b) to terminate all or part of an enduring power of attorney, or

(c) that, if the application concerns a matter described in section 34 (2) (a) or (b),

(i) the enduring power of attorney and all actions done under it are void, or

(ii) the enduring power of attorney is terminated, but any action done under it before it was terminated is not void.

(6) When making an order under subsection (5), the court must consider the wishes, instructions, beliefs and values of the adult who made the enduring power of attorney, and must not make a contrary order unless

(a) the adult is incapable, and

(b) the order is in the best interests of the adult.

(7) The costs of an application to the court are at the discretion of the court, and the court may order that all or part of those costs be paid from the property of the adult who made the enduring power of attorney.

Court jurisdiction

37   Nothing in this Act

(a) limits the inherent jurisdiction of the court to act in a parens patriae capacity, or

(b) deprives a person of the right to ask the court to exercise that jurisdiction.

Extrajurisdictional powers of attorney

38   Subject to any limitation or condition set out in the regulations, a power of attorney that

(a) applies or continues to apply when an adult is incapable,

(b) was made in a jurisdiction outside British Columbia, and

(c) complies with any prescribed requirements

is deemed to be an enduring power of attorney made under this Act.

Offence Act does not apply

39   Section 5 of the Offence Act does not apply to Part 2 or 3, or the regulations.

Conflict with representation agreement

40   If any provision, respecting an adult's financial affairs, of a representation agreement made by an adult under the Representation Agreement Act is inconsistent with, or in conflict with, a provision of an enduring power of attorney made by the adult, the inconsistency or conflict is to be resolved in favour of the provision in the enduring power of attorney.

Power to make regulations

41   (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) prescribing matters for the purposes of section 12 (2) (g);

(b) respecting records to be kept by an attorney, including the form and content of those records;

(c) respecting the value of gifts or loans, or charitable gifts, that may be made by an attorney under section 20 (1) (c), expressed in any form, including as a percentage of net income, and including setting different values for different classes of gifts, loans and charitable gifts;

(d) prescribing offences for the purposes of section 29 (2) (d) (v);

(e) defining words and expressions used but not defined in this Act;

(f) prescribing Acts for the purpose of the definition of "health care provider" in section 10;

(g) prescribing classes of health care providers whose members may act as qualified health care providers.

(2.1) The authority to make regulations under another provision of this Act does not limit subsection (1) or (2).

(3) The minister may publish forms that may be used in the making of an enduring power of attorney, but it is not necessary for an adult to use a published form for an enduring power of attorney to be valid.

(4) [Repealed 2022-31-7.]

Regulations in relation to signing enduring power of attorney — alternative process

41.1   (1) The Lieutenant Governor in Council may make regulations establishing an alternative process for witnessing the signing and dating of an enduring power of attorney, including

(a) prescribing what being in the presence of another person, as referred to in sections 16, 17 and 17.1, means,

(b) respecting the signing and dating, in counterpart, of an enduring power of attorney,

(c) prescribing required qualifications of a witness, and

(d) prescribing additional information that must be included in an enduring power of attorney.

(2) In making a regulation under subsection (1), the Lieutenant Governor in Council may

(a) make different regulations for different provisions of the Act, different persons or circumstances or different classes of persons or circumstances, and

(b) establish different classes of persons or circumstances.

Regulations in relation to extrajurisdictional powers of attorney

41.2   The Lieutenant Governor in Council may make regulations respecting extrajurisdictional powers of attorney for the purposes of section 38, including

(a) limiting the application of section 38 according to

(i) the jurisdiction in which the extrajurisdictional power of attorney was made, or

(ii) the manner in which the extrajurisdictional power of attorney was made or signed,

(b) respecting conditions or limitations on the operation of the extrajurisdictional power of attorney,

(c) respecting the exercise of powers or performance of duties by a person authorized to act in respect of the extrajurisdictional power of attorney,

(d) respecting the application of any provision of this Act or the regulations to a person acting in respect of the extrajurisdictional power of attorney, and

(e) prescribing circumstances in which section 38 does not apply, or ceases to apply.

Transitional — enduring powers of attorney made before Parts 2 and 3 enacted

42   (1) An enduring power of attorney that was validly made under section 8, before the repeal, on September 1, 2011, of that section by the Adult Guardianship and Planning Statutes Amendment Act, 2007, is deemed to be an enduring power of attorney made under Part 2.

(2) If an enduring power of attorney that was validly made under section 8, before the repeal, on September 1, 2011, of that section by the Adult Guardianship and Planning Statutes Amendment Act, 2007, contains an authorization that is permitted under that section but would not otherwise be permitted under Part 2, the authorization continues to be valid.

(3) The Lieutenant Governor in Council may make regulations the Lieutenant Governor in Council considers necessary or advisable to

(a) bring Parts 2 and 3 into operation, and

(b) facilitate the application of Parts 2 and 3 to an enduring power of attorney that was validly made under section 8, before the repeal of that section by the Adult Guardianship and Planning Statutes Amendment Act, 2007.

(4) For the purposes of subsection (3), an enduring power of attorney includes any document that is ancillary to the enduring power of attorney.

(5) The authority to make or amend a regulation under subsection (3), but not the authority to repeal a regulation under subsection (3), ends 3 years after the date on which subsection (3) comes into force.