Does an Enduring Power of Attorney Need to Be Registered in Alberta?

If you have signed an enduring power of attorney (EPA), or you are the person named in one, you may wonder whether it has to be filed with a court or government office before it can be used. It is a common worry, because many legal documents do have to be registered somewhere.

This article explains what Alberta's information says about registration, what actually makes an EPA valid, and how to think about showing it to a bank or other organization. It is general information, not advice on your own document.

This article covers the law of Alberta.

Is there an Alberta registry for EPAs?

An EPA is a legal document under the Powers of Attorney Act. It lets an adult, called the donor, give another person, called the attorney, authority to make financial decisions. In this article, the word attorney means that person, not a lawyer.

Alberta has no regulated form for an EPA, and the Alberta government's information describes no registration step. The same information recommends making an EPA with a lawyer. You do not file it with the court or with the Office of the Public Guardian and Trustee for it to be valid. Validity comes from how it is made.

What makes an EPA valid

Since validity depends on signing, the details matter. These rules apply despite any agreement or waiver to the contrary.

• The EPA must be in writing, dated and signed, and the donor must be an adult when signing.
• The attorney must also be an adult when the donor signs.
• The document must state that it continues despite later incapacity, or that it takes effect on incapacity.
• The donor signs in the presence of a witness, and the witness signs in the donor's presence.
• The donor must be mentally capable when signing. An EPA is void if the donor could not understand its nature and effect at that time.

The following people cannot witness: the named attorney, the attorney's spouse or adult interdependent partner, the donor's spouse or adult interdependent partner, a person who signs for the donor, and that signer's spouse or adult interdependent partner.

Signing exceptions

• If the donor is physically unable to sign, another person may sign at the donor's direction, in the presence of the donor and a witness. The named attorney and the attorney's spouse or adult interdependent partner may not sign for the donor.
• People connected by real-time electronic communication, where they can see, hear and communicate, are treated as present together, but only if an active member of the Law Society of Alberta provides the donor with legal advice and services on the EPA.
• An EPA signed outside Alberta is recognised if it is valid under the law of the place where it was signed and the attorney's authority survives the donor's incapacity.

When you may have to show the document

An EPA can take effect immediately and continue if capacity is lost, or take effect only once capacity is lost. It may also take effect at a specified future time or on a specified contingency such as incapacity. It may name the people whose written declaration conclusively establishes that the contingency has occurred, and that person may be the attorney.

If the EPA names no one to declare the contingency, or the named person has died or cannot decide, 2 medical practitioners can declare in writing that it has occurred. In that situation, expect to have that written declaration available along with the EPA.

Beyond that, the rules that banks, Land Titles and other organizations apply when you ask them to deal with an attorney are set by those organizations and by the law that governs them. They may want the original or a copy, identification, or other paperwork. Ask each one in advance what it needs.

What to do next

• Do not look for a registry. Instead, check that your EPA was signed, dated and witnessed properly.
• Keep the original somewhere safe and tell the attorney where it is.
• If the EPA only takes effect on incapacity, confirm who is named to declare that, and what written proof will be needed.
• Contact each bank or organization ahead of time and ask what documents it requires.
• If the signing was unusual (electronic, outside Alberta, or signed for the donor), speak to a lawyer to confirm it holds up.

Frequently asked questions