Power of Attorney vs Personal Directive in Alberta: Key Differences

Alberta has two main planning documents that people often mix up. One deals with your money and property. The other deals with your health and personal life. Having one does not cover the other.

This article compares the enduring power of attorney (EPA) and the personal directive, explains who decides under each, and covers what can happen if you have neither. Here, "attorney" means the person appointed under an EPA, not a lawyer.

This article covers the law of Alberta.

What each document covers

An EPA is a legal document in which an adult gives another person authority to make financial decisions. A personal directive covers personal matters, and the person named as agent makes those decisions.

Under the Powers of Attorney Act, and subject to the terms of the EPA, the attorney can do anything on your behalf that you could lawfully do by an attorney. An EPA is different from an ordinary power of attorney because it is not ended by your mental incapacity.

An EPA does not give the attorney power to make or change your will. An EPA also ends when the donor dies, and after that authority passes to the personal representative, such as the executor named in the will. The former attorney is not automatically the personal representative.

When each one starts working

An EPA is made while you are capable. It can take effect immediately and continue if you lose capacity, or take effect only once capacity is lost.

A personal directive applies only once the maker is found to lack capacity, confirmed by an assessment and a Declaration of Incapacity form. If the maker can decide again, a Determination of Regained Capacity form restores their authority.

If an EPA is meant to start on a future event such as incapacity, it may name the people whose written declaration conclusively establishes that the event has happened, and that person may be the attorney. If no one is named, or the named person has died or cannot decide, two medical practitioners can declare in writing that the event has occurred.

An EPA signed after capacity is lost has no effect, because an EPA is void if the donor was mentally incapable when it was signed. That is one reason to plan early.

Signing and witnessing differences

• An EPA must be in writing, dated and signed by an adult donor, and the donor signs in front of a witness who is not on the barred list.
• The people barred from witnessing an EPA include the attorney, the attorney's spouse or adult interdependent partner, and the donor's spouse or adult interdependent partner.
• A personal directive must be signed by the maker and a witness. The witness must be over 18 and cannot be the maker's spouse or interdependent partner, the agent, or the agent's spouse or partner.
• A personal directive need not be notarized and is not submitted to the court or the OPGT.

Alberta has no regulated form for an EPA, and the government recommends making one with a lawyer.

There are exceptions for an EPA. 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, but the named attorney and the attorney's spouse or adult interdependent partner may not do so. People connected by real-time electronic communication can be treated as present together, but only if an active member of the Law Society of Alberta gives the donor legal advice and services on the EPA. An EPA signed outside Alberta is recognised if it is valid where it was signed and the attorney's authority survives the donor's incapacity.

What can happen if you have neither

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. Without an EPA, a trustee may have to be court-appointed.

A court-appointed trustee manages money, property and benefits but cannot make medical or residence decisions. A court application can take time and involve forms, a capacity assessment and filing fees. That is one reason many people put both documents in place while they are well.

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 who is concerned for the person's welfare may apply, and the Court must consider any EPA the adult gave. A trusteeship order for the donor ends the EPA.

What to do next

• Decide who you trust with money and property, and who you trust with personal and health decisions. They may be the same person or different people.
• Check whether you already have an EPA, a personal directive, or both.
• Choose witnesses who are not barred under the rules for each document.
• Speak to a lawyer about how the two documents should work together.
• Tell your chosen people where the signed documents are.

How these rules apply to your family, your finances and your wishes depends on your situation, so it is worth confirming the details with a lawyer before you sign anything.

Frequently asked questions