Making an Enduring Power of Attorney After Capacity Is Lost in Alberta

When a parent develops dementia and never signed an enduring power of attorney (EPA), families often ask whether one can be signed now. The answer is generally no, and it is better to hear that early than to rely on a document that may later fail.

This article explains why timing matters, what Alberta's Adult Guardianship and Trusteeship Act offers instead, and what practical steps to take. Whether your parent can still decide on this question depends on the facts, so legal advice is important.

This article covers the law of Alberta.

Why an EPA generally cannot be made after capacity is lost

An EPA is made while the donor is capable of making their own decisions. Under the Powers of Attorney Act, an EPA is void if, when it was executed, the donor was mentally incapable, meaning they could not understand its nature and effect. A document signed after capacity is lost therefore has no effect.

Having someone else sign does not solve it. Another person may sign at the donor's direction only if the donor is physically unable to sign, and the donor must still be capable. The same goes for the donor being an adult, and for the document being in writing, dated and signed.

Capacity is not all or nothing

A diagnosis alone does not settle whether a person can sign an EPA. The question is whether, at the time of signing, the person could understand what the document is and what it does. This can vary from one day or one decision to another, and it is a legal question as well as a medical one.

If you think your parent may still understand, speak to a lawyer quickly. A lawyer can assess the situation and explain the risk of a document being challenged later. Do not backdate or rush a document, since it would be void if capacity was lacking.

The alternative: trusteeship

The Court may appoint a trustee if the adult lacks capacity to make financial decisions, less intrusive alternatives would not adequately protect the adult's financial interests, and a trustee is in the adult's best interests. Any adult 18 or older concerned for the person's welfare may apply.

• A physician, psychologist or designated capacity assessor must complete the capacity assessment, and it must be dated within the 6 months before the application is submitted.
• The core forms are Form 14, Form 15, Form 34 and Form 37.
• Filing fees are up to $300.
• A desk application is used when no one is expected to disagree. A hearing application must serve the Office of the Public Guardian and Trustee at least 30 days before the hearing.
• In urgent cases the Court may appoint a temporary trustee for up to 90 days, who cannot sell property.

If no one is willing to act, the Public Trustee may act. A trustee other than the Public Trustee needs specific court permission to sell the adult's home or other real estate.

What a trustee cannot do

A trustee manages money, property and benefits but cannot make medical or residence decisions. A guardian or trustee has no power to make a will on behalf of the represented adult. An adult may make, alter or revoke a will only if they have the mental capacity to do so.

Personal matters such as medical treatment and where the person lives are covered by a personal directive, which applies only once the maker is found to lack capacity. Without a personal directive, a healthcare provider may choose the nearest relative to decide on health care, and a family member or friend may need to go to court to become a guardian.

What to do next

• Look for any existing EPA or personal directive among your parent's papers.
• Ask a lawyer whether your parent may still be capable of signing an EPA.
• If not, ask the family doctor about a capacity assessment for trusteeship.
• Agree within the family on who will apply, so that a desk application is possible.
• Ask about guardianship if personal decisions are also needed.

Frequently asked questions