Can an Attorney Be Paid for Acting Under a Power of Attorney in Alberta?

Acting as an attorney under an enduring power of attorney can take real time: paying bills, handling banking, dealing with property. Attorneys and donors often ask whether the work can be paid for.

This article explains what the Alberta legislation does and does not say, how a court-appointed trustee compares, what happens if someone has concerns, and why the wording of the document is so important. The word attorney here means the person appointed, not a lawyer.

This article covers the law of Alberta.

What the Act says about pay

An enduring power of attorney (EPA) is a legal document, governed by the Powers of Attorney Act, by which an adult gives another person authority to make financial decisions for them. The Powers of Attorney Act sections that set out an attorney's role contain no compensation or expense provision for attorneys. So there is no statutory right to be paid that you can point to.

Subject to the Act and the EPA's terms, the attorney may do anything the donor may lawfully do by an attorney. Because the Act is otherwise silent on gifts and self-dealing, the EPA's terms and the attorney's duty to protect the donor's interests matter.

The Act does let the attorney 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. That is not the same as a right to be paid for the work.

Why the EPA's wording matters

A donor who is still capable can decide how they want the attorney treated and put it in writing when the document is made. An EPA must be in writing, dated and signed. Alberta has no regulated form, and the government recommends making one with a lawyer.

• If you are the donor, consider saying clearly whether the attorney may be paid, how much or by what method, and whether expenses are repaid.
• If you are the attorney, read the document before taking anything from the donor's money.
• If the document is silent, do not assume payment is allowed. Whether a court would approve it depends on the facts and is worth confirming with a lawyer.

A donor must have been mentally capable when signing. An EPA is void if the donor could not understand its nature and effect when it was executed. That is one more reason to deal with questions about pay while the donor can still decide.

Pay versus repaying expenses

Payment for your time is different from being repaid for money you spent. The Powers of Attorney Act sections that set out an attorney's role contain no express expense-reimbursement provision for attorneys either. Out-of-pocket costs are best handled by what the EPA says, with receipts kept for every item.

Whatever the amount, an attorney who has acted owes a duty to protect the donor's interests while they know or should reasonably know the donor cannot make reasonable judgments about their estate, unless the EPA provides otherwise. The Court can order an attorney to pass accounts for any or all transactions, so unexplained payments to yourself are risky.

How court-appointed trustees compare

This is a comparison only. Under the Adult Guardianship and Trusteeship Act, a private trustee appointed by the Court can be compensated out of the adult's property, either under a prescribed fee schedule or in an amount the Court sets considering effort, care, responsibility and time. Direct expenses and disbursements are reimbursable.

If someone has concerns about an attorney

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

• The Court may order an attorney to pass accounts. 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.
• The application and any order must be served on the donor and the attorney unless the Court provides otherwise.
• Any interested person may apply to the Court of King's Bench to terminate an EPA if that would be in the donor's best interests.

If the Court ends an EPA, it shall not appoint a substitute attorney, but it may direct the applicant to seek a trusteeship order or appoint an interim trustee. Where an attorney fraudulently sells or otherwise disposes of the donor's property, the Criminal Code treats that as theft. How any of this applies depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Read the EPA for any wording about payment or expenses.
• Keep a log of time and a receipt for every expense.
• Keep the donor's money separate from your own.
• If you want payment, ask a lawyer before you take it, because whether it is allowed depends on what the EPA says and on your situation.

Frequently asked questions