Does a Power of Attorney End at Death in Alberta?

If you have been managing a parent's, spouse's or relative's finances under a power of attorney, a death changes your role right away. Many people are unsure whether they can still pay bills, access accounts or deal with property.

This article explains in plain terms what happens to the authority, what you should stop doing, and who steps in. Here, "attorney" means the person appointed under the document, not a lawyer.

This article covers the law of Alberta.

The short answer: it ends at death

Under the Powers of Attorney Act, an enduring power of attorney (EPA) ends on the death of the donor, so the attorney's authority under it stops at the donor's death. It also ends on the attorney's death if no alternate remains.

That is true even though an EPA is designed to survive the donor's incapacity. Surviving incapacity is not the same as surviving death.

An 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. It can take effect immediately and continue if capacity is lost, or take effect only once capacity is lost. Either way, the donor's death brings it to an end.

What you should stop doing

The EPA ends at the donor's death, so your authority under it is gone from that point, whether or not you have yet learned of the death. In general terms, that means you should stop using the document to move money, sign contracts, sell or transfer property or deal with the donor's accounts.

• Do not make new withdrawals or transfers using the EPA.
• Do not sell, transfer or mortgage the donor's property.
• Keep clear records of what you did while the EPA was in force, since the court can order an attorney to pass accounts and the donor's personal representative may apply.
• Keep receipts and statements, and do not discard anything.

Using a power of attorney to sell, mortgage or otherwise dispose of property fraudulently can amount to theft under section 331 of the Criminal Code. Separately, an attorney's authority does not include making or changing the donor's will.

What if you acted before you knew?

Sometimes an attorney carries on without knowing the donor has died. An attorney who acts after the EPA has ended is not liable if they did not know, and had no reasonable grounds for believing, that their authority had terminated. Those acts are valid and binding in favour of anyone who also lacked that knowledge.

This protection is narrow. It does not cover acting after you do know. If you are unsure about something you did, speak to a lawyer.

Other ways an EPA can end

Death is not the only event that ends an EPA. An EPA, other than an irrevocable one, ends when the donor revokes it in writing while mentally capable. Other endings include the attorney renouncing, a court order terminating it, a trusteeship order for the donor or the attorney, and death.

• If the donor is no longer mentally capable, the donor cannot revoke the EPA. Ending it then requires a court order or a trusteeship order.
• With multiple or alternate attorneys, one attorney's death or incapacity does not end the EPA while another can act.
• A trusteeship order for the donor ends the EPA.

Which of these applies to your situation depends on the facts, so it is worth confirming with a lawyer.

Who takes over after death

Authority passes to the personal representative. That is the executor named in the will, or an administrator or judicial trustee, as defined in the Wills and Succession Act. The former attorney is not automatically the personal representative.

If you are also named as executor in the will, you act in that role, which is a separate source of authority. If you are not, the executor or the court-appointed representative takes over. How and when to pass on your records depends on your situation, so it is worth confirming with a lawyer. Because the donor's personal representative can ask the court for accounts, good records matter.

What to do next

• Stop acting under the EPA, because your authority ended at the donor's death.
• Find out who is named as executor in the will.
• Gather records of everything you did as attorney.
• Tell the personal representative what accounts and property you were managing.
• Speak to a lawyer about your next steps, especially if you are the executor or have questions about past transactions.

Frequently asked questions