Can an Attorney Change Your Will in Alberta?

Many families worry when one person is given an enduring power of attorney. A common fear is that the person will quietly rewrite a parent's will, or steer the estate in their own favour.

The short answer is that the document does not reach that far. This article explains where an attorney's authority stops, what it does cover, and what you can do if you are concerned.

This article covers the law of Alberta.

What an attorney can do

An enduring power of attorney (EPA) is a document under the Powers of Attorney Act that lets an adult give another person authority over financial decisions. Subject to the Act and the terms of the EPA, the attorney can do anything on the donor's behalf that the donor may lawfully do by an attorney. In this context, the word attorney means the person appointed, not a lawyer.

An EPA is not ended by the donor's later mental incapacity, which is what separates it from an ordinary power of attorney. That is why it matters so much who is named.

Why an attorney cannot change a will

The attorney's power under section 7 of the Act does not include making or changing the donor's will. Under the Wills and Succession Act, an adult can make, alter or revoke a will only if they have the mental capacity to do so, and the will must be signed by the testator.

There is a narrow exception for signing only. Another person may sign a will at a capable testator's direction and in their presence, but that is a signing assist, not a substitute decision-maker, and the person who signs cannot also witness.

The same limit applies to court-appointed guardians and trustees. A guardian or trustee has no power to make a will on behalf of the represented adult.

What an attorney can still affect

Even though the will itself is out of reach, an attorney manages the donor's property during the donor's life. That can change what is left to pass through the estate, which is why families worry.

• Unless the EPA provides otherwise, an attorney who has acted has a duty to protect the donor's interests while they know or should reasonably know the donor cannot make reasonable judgments about their estate.
• The 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 they are one of them.
• The Act itself does not otherwise address gifts or self-dealing, so the EPA's terms and the duty to protect the donor matter.
• Whether a specific beneficiary designation or account arrangement can be changed depends on the document and the facts, so ask a lawyer about that.

Concerns about misuse

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, and if the donor cannot make reasonable judgments about their estate, any interested person may apply. This right applies despite any agreement to the contrary.

Any interested person may also ask the Court of King's Bench to terminate an EPA if that 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 Office of the Public Guardian and Trustee cannot investigate complaints against an attorney. If property was fraudulently sold or converted, the Criminal Code treats a person entrusted with a power of attorney as committing theft.

What to do next

• Get a copy of the EPA and read what it allows and when it takes effect.
• Write down what concerns you, with dates and amounts where you can.
• Find out whether the donor still has capacity, since a capable donor can revoke the EPA in writing.
• If you want the Court to review the attorney's financial records, Alberta.ca advises contacting a lawyer. How the rules apply to your situation depends on the facts, so a lawyer can also help you decide which steps fit.

Frequently asked questions