THE ADVOCATE 197
VOL. 78 PART 2 MARCH 2020
Regrettably, Mr. Smith did not articulate the nature of the clarification.22
Section 7 of the BC PoAA is based on s. 7(1) of the U.K. Powers of Attorney
Act23 (the “UK PoAA”), which replaced s. 123(1) of the Law of Property Act
1925,24 which itself replaced s. 46 of the U.K. Conveyancing and Law of Property
Subsection 7(1) of the UK PoAA was amended by the Law of Property (Miscellaneous
Provisions) Act 198926 to require the attorney to be an individual.
That requirement is not in s. 7 of the BC PoAA. This means that corporations
may be attorneys in B.C.
WHO IS AN “ATTORNEY”?
As s. 7 of the BC PoAA refers to an “attorney”, one must know the meaning
of that term in that context. Section 1 of the BC PoAA defines an “agent” as
including an “attorney”, but it does not define “attorney”. Indeed, somewhat
surprisingly, the BC PoAA does not define a “power of attorney”. One must
turn back to the common law.
In 1975, the Law Reform Commission of British Columbia issued two
reports on the law of agency.27 The second adopted the following definition
of a power of attorney: “an authority whereby one is set in the turne, stead,
or place of another to act for him”.
In a more recent report on powers of attorney, to which the B.C. Law
Institute contributed, the following definition of a “power of attorney” was
adopted: “a document under which one person, the donor, appoints another
person, the attorney, to look after some or all of the affairs of the donor”.28
Fridman defines a power of attorney as “a document by which one person,
the donor, gives another person, the donee, express authority to act for
the donor”.29 The author of Powers of Attorney and Capacity gives essentially
the same definition,30 relying on a B.C. decision.31 The definition is the same
under U.K. law,32 and decisions in other Commonwealth countries agree.33
POWERS OF ATTORNEY NEED NOT BE SIGNED UNDER SEAL
It is sometimes said that a power of attorney is a “formal” grant of agency.
The adjective “formal” in this context may mean simply “written”, or it may
have been intended to mean “under seal”. Under s. 1(1) of the UK PoAA, a
power of attorney must be signed under seal. It has been suggested, with
some uncertainty, that this was the rule at common law.34
In Houston v. Houston,35 Newbury J.A. for the Court of Appeal said that
“at common law, where an agency was granted by deed giving specified
authority to the agent, it was called a ‘power of attorney’”.36 She did not say,
at least not expressly, that a power of attorney could be granted only by