Can an Attorney Gift Your Money to Themselves in Alberta?

You may have noticed money moving out of a parent's or relative's account into the account of the person named as attorney. That raises a fair question: is the attorney allowed to do that? In this article, "attorney" means the person appointed under an enduring power of attorney (EPA), not a lawyer.

The answer in Alberta is not a simple yes or no. It depends on what the EPA says, what the donor's needs were, and how the attorney handled their duty. This article explains the rules that apply and what you can do if you are worried.

This article covers the law of Alberta.

What an attorney is allowed to do

An EPA is a legal document under the Powers of Attorney Act by which an adult gives another person authority to make financial decisions for them. 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.

That authority is broad, but it is subject to the Act and the terms of the EPA, and unless the EPA provides otherwise the attorney has a duty to protect the donor's interests in the circumstances the Act describes. The attorney is acting for someone else, and the document and the Act both shape how far that authority goes.

What the Act says about gifts and self-dealing

The Act allows the attorney to use the authority for the maintenance, education, benefit and advancement of the donor's spouse, adult interdependent partner and dependent children. This includes the attorney, if the attorney is one of those people.

Beyond that, the Act itself does not otherwise address gifts or self-dealing. That means the EPA's own terms and the attorney's duty to protect the donor's interests matter a great deal. An EPA might expressly permit or restrict gifts, so reading the actual document is the first step.

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.

Comparing court-appointed trustees

It helps to know that a different set of rules applies to trustees appointed by the Court under the Adult Guardianship and Trusteeship Act. A trustee is barred from making gifts from the adult's property except where the property is not needed for the adult's or dependants' needs and the trustee has reasonable grounds to believe, from the adult's past actions while capable, that the adult would make the gift. The Court may authorize other gifts.

Those limits are for trustees, not for attorneys under an EPA. They are useful only as a comparison of how carefully the law treats a gift from someone who cannot protect their own money. Whether a particular transfer by an attorney was proper depends on the facts and the EPA.

Options if you think money was misused

• Ask the Court to order the 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.
• Apply to the Court of King's Bench to terminate the EPA if that would be in the donor's best interests. The Court will not appoint a substitute attorney, but may direct the applicant to seek a trusteeship order or appoint an interim trustee.
• Apply for a trusteeship, where the Court must consider any EPA the adult gave.
• Contact the police. Under the Criminal Code, a person entrusted with a power of attorney commits theft by fraudulently selling, mortgaging, pledging or otherwise disposing of the property, or fraudulently converting the proceeds to a purpose other than that for which it was entrusted.

The Office of the Public Guardian and Trustee (OPGT) 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.

What to do next

• Get a copy of the EPA and read what it says about gifts and when it took effect.
• Write down the transfers you are concerned about, with dates, amounts and who received them.
• Note whether the donor could still make reasonable judgments when each transfer happened.
• Avoid confronting the attorney in a way that could prompt records to disappear.
• Speak with a lawyer about whether an accounting application or another step suits your situation.

Frequently asked questions