What Is an Enduring Power of Attorney in Alberta?

You may have heard the term "enduring power of attorney" from a relative, a bank or a hospital social worker. It sounds technical, but the idea is simple: it is a way for someone you trust to handle your money and property if you cannot.

This article explains what the document does, how it differs from an ordinary power of attorney, and what rules Alberta sets. In this article, "attorney" means the person appointed under the document, not a lawyer.

This article covers the law of Alberta.

What an enduring power of attorney is

An enduring power of attorney (EPA) is a legal document, governed by Alberta's Powers of Attorney Act, in which an adult gives another person authority to make financial decisions for them. The person who signs it is called the donor. The person they appoint is the attorney.

Subject to the Act and the terms of the document, the attorney can do anything on the donor's behalf that the donor may lawfully do by an attorney. In practice that usually means money and property matters, rather than health or personal care.

How it differs from an ordinary power of attorney

The key difference is what happens if the donor becomes mentally incapable. An EPA is not terminated by the donor's mental incapacity or infirmity, while an ordinary power of attorney is not designed to survive incapacity. To qualify as an EPA, the document must state that it continues despite later incapacity or that it takes effect on incapacity.

An EPA is made while the donor is capable of making their own decisions. It can take effect immediately and continue if capacity is lost, or it can take effect only once capacity is lost.

What makes an EPA valid

• It must be in writing, dated and signed, and the donor and the attorney must both be adults when the donor signs.
• The donor signs in the presence of a witness, and the witness signs in the donor's presence.
• The attorney, the attorney's spouse or adult interdependent partner, the donor's spouse or adult interdependent partner, and anyone who signs for the donor (and that person's spouse or partner) cannot act as witness.
• If the donor was mentally incapable when the document was signed, it is void, so a document signed after capacity is lost has no effect.

There are exceptions. If the donor is physically unable to sign, another person may sign at the donor's direction in the donor's presence and a witness's presence, but not the attorney or the attorney's spouse or partner. People connected by real-time electronic communication can be treated as present together, but only if a lawyer who is 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.

Alberta has no regulated form for an EPA, and the government recommends making one with a lawyer. The government page describes no registration step.

When it starts and what the attorney must do

An EPA may come into effect at a specified future time or on a specified contingency such as incapacity. It can name the people whose written declaration conclusively establishes that the contingency has occurred, 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 contingency has occurred.

Unless the EPA says otherwise, an attorney who has acted or accepted the appointment must use their powers to protect the donor's interests while they know or should reasonably know the donor cannot make reasonable judgments about their estate. An attorney investing the donor's money is also bound by certain Trustee Act sections.

An attorney cannot make or change the donor's will. The Act itself does not otherwise address gifts or self-dealing, so the terms of the EPA and the attorney's duty to protect the donor's interests matter. Whether an attorney can be paid depends on what the EPA says, so ask a lawyer about your document.

What to do next

• Decide who you trust with your finances, and consider naming an alternate.
• Think about whether the EPA should start now or only on incapacity, and who should confirm incapacity.
• Choose a witness who is not on the barred list.
• Talk to a lawyer before signing, since there is no regulated form.
• Tell the person you appoint where the signed document is kept.

Frequently asked questions