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Is the power of attorney we made in the United States valid in BC?

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Is the power of attorney we made in the United States valid in BC?
We are dual citizens of the US and Canada. Our main home is in Arizona, and we have an apartment in Vancouver where we spend summers. We executed an enduring power of attorney in Arizona. Will it be valid for our Vancouver property and bank accounts?

Arizona POA - Kevin Smith's Answer

Under the law in BC, a power of attorney made in the United States is deemed to be a power of attorney made under BC law if all of these conditions are met:

  1. The power of attorney is effective while the adult is incapable of making decisions about their financial affairs (in other words, is an enduring power of attorney).
  2. The power of attorney was made by a person who was ordinarily resident in the US.
  3. The power of attorney was validly made according to the laws of the jurisdiction in which the person was ordinarily resident and the power of attorney was made.
  4. The power of attorney continues to be effective in the jurisdiction in which it was made (in this case, Arizona).

 

Most courts understand “ordinarily resident” to mean where a person resides in the course of their day-to-day life. Usually, a person doesn’t lose their ordinary residence by temporarily spending time in another location. However, this will ultimately depend on the specific situation.

Another BC law says that to be effective in BC, a deemed power of attorney must be accompanied by a certificate from a solicitor permitted to practice in the jurisdiction where the power of attorney was made. The certificate must indicate that the power of attorney meets conditions 1 to 3 above. The form of the certificate is set out in the schedule to the Power of Attorney Regulation.

Also note that a person named as an attorney in a deemed power of attorney must not, in British Columbia, do anything that could not lawfully be done by an attorney (1) under BC law, or (2) in the jurisdiction where the power of attorney was made.

One final point is that, for attorneys who reside in the US, there can be issues with that attorney giving instructions to Canadian investment firms. The attorney may be required to file certain documents with the IRS in the US. See this article for a more in-depth explanation.

Kevin Smith

Kevin Smith

Kevin Smith is a retired lawyer, having worked for several years with Seniors First BC (formerly BC Centre for Elder Advocacy and Support) in Vancouver.

Barrister & Solicitor
Written March 9, 2018

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