What If a Person Has Lost Capacity and Has No Power of Attorney in Alberta

When a parent, spouse or other relative can no longer make decisions and never signed an enduring power of attorney (EPA), families often ask whether someone can sign one on their behalf. Unfortunately, it does not work that way, but Alberta has a court process that can fill the gap.

This article explains why a new EPA is not an option, how a trusteeship application works, and where guardianship fits. The details depend heavily on the person's circumstances, so a lawyer can confirm the best route for your family.

This article covers the law of Alberta.

Why you cannot sign a power of attorney after capacity is lost

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

Relatives also cannot sign for the person as a workaround. The only signing exception is where a capable donor is physically unable to sign and directs another person to do it. That is different from someone who cannot understand the document.

The same logic applies to a will. An adult may make, alter or revoke a will only if they have the mental capacity to do so.

What happens without an EPA or personal directive

Without an EPA, a trustee may have to be court-appointed to deal with the person's finances. 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.

Applying for a trusteeship

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

• A physician, psychologist or designated capacity assessor must complete the capacity assessment, dated within the 6 months before the application is submitted.
• The core forms are Form 14, Form 15, Form 34 and Form 37.
• For a hearing application, the OPGT (Office of the Public Guardian and Trustee) must be served at least 30 days before the hearing.
• A desk application is used when no one is expected to disagree.
• Filing fees are up to $300, though this figure may change.

Urgent situations, real estate and the Public Trustee

In urgent cases, the Court may appoint a temporary trustee for up to 90 days, and that temporary trustee cannot sell property. A trustee other than the Public Trustee needs specific court permission to sell the adult's home or other real estate.

If no one is willing to act, the Public Trustee may act. The Public Trustee may also step in where a trusteeship application has been referred, less intrusive options would not protect the adult's finances, it serves the adult's best interest, and no one else is likely to apply within a reasonable time.

A trustee is not a free-for-all. The Court may inquire into a trustee's misconduct and order the trustee to reimburse the adult for loss. Gifts from the adult's property are also restricted.

What a trustee or guardian 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. If the person has no will, the family should speak with a lawyer about what that means for the estate.

What to do next

• Check whether the person ever signed an EPA or a personal directive, including in a lawyer's file or at home.
• Ask the person's doctor whether a capacity assessment can be arranged and who is qualified to complete it.
• List the person's income, accounts, property and debts, and identify what bills need attention now.
• Talk to other close family members early, since a desk application suits situations where no one is expected to disagree.
• Get legal advice on whether to seek trusteeship, guardianship or both, and on the forms and timing.

Frequently asked questions