- Unless the EPA provides otherwise, an attorney who has acted or accepted the appointment has a duty to protect the donor's interests while they know, or should reasonably know, that the donor cannot make reasonable judgments about their estate.
- The Court can order an attorney to bring in and pass accounts, and who may apply depends on whether the donor can still make reasonable judgments about their estate.
- The Office of the Public Guardian and Trustee cannot investigate complaints against an attorney, so the route for a concerned person is a court application.
If a relative has an enduring power of attorney (EPA) over a parent's finances, you may wonder what they have to show the rest of the family. You may be worried about missing money or simply want to understand what is being done.
In this article, the word attorney means the person appointed under the EPA, not a lawyer. It explains the attorney's duties, how a court accounting works, and what other options exist if a family member refuses to share information.
This article covers the law of Alberta.
What duty does an attorney owe the donor?
Unless the EPA provides otherwise, an attorney who has acted or accepted the appointment must exercise their powers to protect the donor's interests while they know, or should reasonably know, that the donor cannot make reasonable judgments about their estate. An attorney who invests the donor's money is also subject to certain Trustee Act sections.
The Act allows an attorney to 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. Beyond that, the Act itself does not otherwise address gifts or self-dealing, so the terms of the EPA and the attorney's duty to protect the donor matter.
On payment, the Powers of Attorney Act sections have no compensation or expense provision for attorneys. Whether an attorney may be paid usually depends on what the EPA says and, in a dispute, on court approval.
Keeping records in practice
Good record-keeping is a sensible protection for an attorney and an easy way to answer questions from family. The attorney's duty to protect the donor's interests applies while they know, or should reasonably know, that the donor cannot make reasonable judgments about their estate. How much detail is wise depends on the situation, so it is worth confirming with a lawyer.
- Keep bank and investment statements for the donor's accounts.
- Keep receipts and notes for every significant payment, including care costs and taxes.
- Keep the donor's money separate from your own.
- Write down the reason for any large or unusual transaction at the time.
Applying to court for an accounting
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. The Court may grant whatever accounting order it considers appropriate, and this right applies despite any agreement or waiver to the contrary. Alberta.ca describes this as a way for a concerned person to force the attorney to provide relevant financial records to the court for review, and advises contacting a lawyer to do so.
Other routes when something seems wrong
| Route | What it can do |
|---|---|
| Accounting application | Court may order the attorney to pass accounts |
| Termination application | Any interested person may ask the Court to end the EPA if that is in the donor's best interests |
| Trusteeship application | Court may appoint a trustee for a donor who lacks capacity, and must consider the EPA |
| Police | Fraudulently selling, mortgaging, pledging or otherwise disposing of property, or converting proceeds, entrusted under a power of attorney can be theft under Criminal Code s. 331 |
The OPGT cannot investigate complaints against an attorney acting under an EPA and cannot provide legal advice or assess capacity, so a concerned person's route is a court application under the Powers of Attorney Act. On a termination application, the Court shall not appoint a substitute attorney, but may direct the applicant to seek a trusteeship order or appoint an interim trustee.
An attorney who is unsure what to do may also apply to the Court for opinion, advice or direction. Following that direction is treated as discharging the duty on that matter, except where there has been fraud, wilful concealment or misrepresentation.
What to do next
- Ask the attorney calmly and in writing for information about the donor's finances, and keep a copy of the request and any reply.
- Write down what concerns you, with dates and amounts where you can.
- Collect any documents you already have, including the EPA itself.
- Find out whether the donor can still make reasonable judgments, since this affects who may apply for an accounting.
- Speak with a lawyer about whether an accounting, termination or trusteeship application fits your situation.
Frequently asked questions
Can I demand to see the attorney's records as a relative?
The route Alberta.ca points to is a court application under the Powers of Attorney Act, which lets a concerned person force the attorney to provide relevant financial records to the court. The donor, the donor's personal representative or a trustee may apply, and if the donor cannot make reasonable judgments about their estate, any interested person may apply.
Who can apply for an accounting?
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.
Can the EPA say the attorney never has to account?
The right to apply for an accounting order applies despite any agreement or waiver to the contrary.
Can I report an attorney to the Public Guardian and Trustee?
The OPGT cannot investigate complaints against an attorney acting under an EPA. Court applications are the route, and theft allegations may involve the police under Criminal Code s. 331.
Sources
- Powers of Attorney Act, RSA 2000, c P-20 (King's Printer) — kings-printer.alberta.ca
- Adult Guardianship and Trusteeship Act (King's Printer) — kings-printer.alberta.ca
- Alberta.ca – Enduring power of attorney — alberta.ca
- Criminal Code, s. 331 (Justice Laws) — Justice Laws (federal)
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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