Does an Enduring Power of Attorney Need Witnesses or Registration in Alberta?

If you are signing an enduring power of attorney, two practical questions come up quickly: who can witness it, and does it have to be filed anywhere.

This article walks through the Alberta rules for signing, who is barred from witnessing, the exceptions, and what the government says about registration. The word attorney here means the person appointed, not a lawyer.

This article covers the law of Alberta.

The basic signing rules

An enduring power of attorney (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. Subject to the Act and the terms of the EPA, the attorney has authority to do anything on the donor's behalf that the donor may lawfully do by an attorney.

An EPA must be in writing, dated and signed. The donor must be an adult when signing, and the attorney must also be an adult when the donor signs. These rules apply despite any agreement or waiver to the contrary.

The donor signs in the presence of a witness, and the witness signs in the donor's presence. The donor must also be mentally capable at signing. An EPA is void if the donor could not understand its nature and effect when it was executed, so a document signed after capacity is lost has no effect.

Who cannot witness

The following people cannot witness an EPA:

• 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.
• That signer's spouse or adult interdependent partner.

Anyone else who is not on this barred list can act as a witness.

Exceptions: physical inability, electronic signing, other places

• 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 attorney and the attorney's spouse or 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. Identical counterparts may be signed separately.
• 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.

The witness rules in the Act do not describe a lawyer's certificate replacing a witness. Do not assume one does, and confirm with a lawyer before signing.

An EPA may come into 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, or the named person has died or cannot decide, two medical practitioners can declare in writing that the contingency has occurred.

Is registration required?

Alberta has no regulated form for an EPA, and the government recommends making one with a lawyer. The Alberta government's page on EPAs describes no registration step. A personal directive is likewise not submitted to the court or the Office of the Public Guardian and Trustee, and it need not be notarized.

To qualify as an EPA, the document must state that it continues despite later incapacity or takes effect on incapacity. It can take effect immediately or only once capacity is lost.

A personal directive is a separate document. It covers personal matters such as medical treatment and where you live, while an EPA covers financial matters. A personal directive must be signed by the maker and a witness, who must be over 18 and cannot be the maker's spouse or interdependent partner, the agent, or the agent's spouse or partner.

An EPA does not give the attorney the power to make or change your will. It ends when the donor dies, so the attorney's authority under it stops at the donor's death. While you are capable, you can revoke an EPA in writing unless it is an irrevocable one. Once the donor is no longer mentally capable, the donor cannot revoke it, and ending it then requires a court order or a trusteeship order.

What to do next

• Choose a witness who is not on the barred list: not the attorney, not the attorney's spouse or partner, not the donor's spouse or partner, and not anyone who signs for the donor or that signer's spouse or partner.
• Confirm the document says it continues despite incapacity or takes effect on incapacity.
• Sign and date it while you are clearly capable.
• If you plan to sign by video, arrange legal advice from a Law Society of Alberta member first.
• Tell the attorney where the original is kept, and consider a personal directive for personal and medical decisions as a separate document.

Without an EPA, a trustee may have to be court-appointed. If a document has already been signed and you are unsure whether the witness was allowed to act, how this applies depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions