What to Do If an Attorney Is Abusing a Power of Attorney in Alberta

You may have noticed missing money, unexplained transfers or a relative cut off from information about an adult's finances. When someone is acting under an enduring power of attorney (EPA), those worries are hard to settle, because the attorney is allowed to manage the donor's money.

This article sets out the steps Alberta law makes available. Each depends on the facts, and a lawyer can help you choose. In this article, attorney means the person appointed under the EPA, not a lawyer.

This article covers the law of Alberta.

What an attorney is allowed to do

Subject to the Powers of Attorney Act and the EPA's terms, an attorney may do anything the donor could lawfully do by an attorney. An attorney may use the authority for the maintenance, education, benefit and advancement of the donor's spouse, adult interdependent partner and dependent children, including the attorney if the attorney is one of them.

Unless the EPA provides otherwise, an attorney who has acted or accepted the appointment must protect the donor's interests while they know or should reasonably know the donor cannot make reasonable judgments about the donor's estate. The Act itself does not otherwise address gifts or self-dealing, so the EPA's wording matters. Whether something is misuse therefore often depends on that wording and the facts.

Steps you can take before going to court

• Write down what you have seen, with dates, and keep any statements or documents you lawfully hold.
• Ask the attorney calmly for an explanation or records. There may be an innocent reason.
• Find out whether the donor can still make decisions. The donor can revoke an EPA in writing while mentally capable, unless it is irrevocable. A donor who is no longer capable cannot revoke it.
• Get legal advice before you act, because the court route has its own rules.

Court applications under the Powers of Attorney Act

The Court may order an attorney to bring in and pass accounts for any or all transactions. The donor, the donor's personal representative or a trustee may apply. If the donor cannot make reasonable judgments about their estate, any interested person may apply. The application and any order must be served on the donor and the attorney unless the Court provides otherwise, and this right applies despite any agreement or waiver to the contrary. Alberta.ca describes this as a way for a concerned person to have the attorney provide financial records to the court for review.

Any interested person may also apply to the Court of King's Bench to terminate an EPA if the Court considers that this would be in the donor's best interests. The Court cannot appoint a substitute attorney, but may direct the applicant to seek a trusteeship order or appoint an interim trustee. The Court may appoint a person to prepare a report.

If the donor lacks capacity to make financial decisions, the Court may appoint a trustee where less intrusive alternatives would not adequately protect the donor's finances and a trustee is in the donor's best interests. The Court must consider any EPA the adult gave. A trusteeship order for the donor ends the EPA.

The Public Trustee and the police

The Office of the Public Guardian and Trustee cannot investigate complaints against an attorney acting under an EPA, and cannot give legal advice or assess capacity. A concerned person's route is a court application under the Powers of Attorney Act.

The Criminal Code is the federal law relevant to police complaints. A person entrusted with a power of attorney commits theft by fraudulently selling, mortgaging, pledging or otherwise disposing of the property, or by fraudulently converting the proceeds to a purpose other than that for which it was entrusted. Whether conduct meets that test depends on the facts. Court and police routes are separate, and a lawyer can explain how they interact.

What to do next

• Collect the EPA, recent statements and your notes in one place.
• Speak to a lawyer about an accounting application, termination or trusteeship.
• If the adult's safety or money is at immediate risk, say so when you seek advice, since urgency may affect your options.
• Consider whether a police report is appropriate if you believe property was fraudulently taken.
• Avoid accusing anyone in writing until you have advice.

Frequently asked questions