Who Can Be Your Attorney Under an EPA in Alberta?

An enduring power of attorney (EPA) lets someone else manage your money and property if you cannot. In Alberta, the person you appoint is called your attorney. That word here means the person appointed under the EPA, not a lawyer.

Choosing that person is often the hardest part. This article explains what Alberta law says about who is eligible, how spouses, joint attorneys and alternates fit in, and what to think about before you decide.

This article covers the law of Alberta.

What Alberta law requires of your attorney

An EPA is a legal document, under the Powers of Attorney Act, by which an adult gives another person authority to make financial decisions for them. The attorney can do anything on your behalf that you could lawfully do by an attorney, subject to the Act and the terms of your document.

Your attorney must be an adult when you sign the EPA. That rule applies despite any agreement or waiver to the contrary. You, the donor, must also be an adult when you sign. In addition, an EPA is void if you were mentally incapable when it was executed, so a document signed after capacity is lost has no effect.

Whether a company or trust corporation can act as an attorney is not something to assume. If you are thinking of naming one, ask a lawyer to confirm how that works for your situation.

Spouses, partners and family

Many people name a spouse, adult interdependent partner or adult child. Spouses and partners come up in the rules mainly around signing. Your attorney, and your attorney's spouse or adult interdependent partner, cannot act as the witness to your EPA. Your own spouse or partner cannot witness either.

If you are physically unable to sign, another person may sign at your direction, in your presence and in front of a witness. Your named attorney and the attorney's spouse or partner may not be that person.

The Act also allows an attorney to use the authority for the maintenance, education, benefit and advancement of your spouse, adult interdependent partner and dependent children, including the attorney if the attorney is one of them, but the Act does not otherwise address gifts or self-dealing, so the terms of your EPA and the attorney's duty to protect your interests matter. That is worth discussing openly with whoever you choose.

More than one attorney, and alternates

You are not limited to one person. With multiple or alternate attorneys, the events that end an EPA refer to the last remaining attorney, so one attorney's death or incapacity does not end the EPA while another can act. An EPA does end on the death of the attorney if no alternate remains.

• Naming an alternate means the EPA does not end just because your first choice dies or becomes incapable, as long as another attorney can still act.
• Naming several attorneys can spread the work, but your document should be clear about how they are to act. A lawyer can help you word this.
• An attorney may also be the person you name to declare that your EPA has come into effect, if your document starts only on a contingency such as incapacity.

If your EPA names no one to declare that contingency, or the named person has died or cannot decide, two medical practitioners can declare it in writing.

Choosing someone wise, not just someone available

An attorney who has acted or accepted the appointment has a duty, unless the EPA says otherwise, to use their powers to protect your interests while they know or should reasonably know you cannot make reasonable judgments about your estate. When investing your money, an attorney is also bound by certain Trustee Act sections. The role is serious, so think about the person, not only the relationship.

• Is this person honest and good with money and paperwork?
• Are they willing to take on the job, and will they be around and reachable?
• Could they handle family pressure or disagreement fairly?
• Do you trust them to keep records, in case a court ever asks for accounts?
• Have you discussed whether they may be paid? The Act sections on attorneys contain no compensation provision, so it depends on what your EPA says and on court approval.

Your attorney has limits too. The attorney's powers do not include making or changing your will. And an attorney who fraudulently disposes of your property may commit theft under the Criminal Code.

Safeguards and what to do next

Choosing someone does not lock you in. While you are mentally capable, you can revoke an EPA in writing (unless it is irrevocable). Once you are no longer capable, you cannot revoke it yourself. It can still end in other ways, such as a court termination order under section 11, a trusteeship order, your death, or the death of the last remaining attorney. An attorney can also renounce, but cannot do so without the Court's permission during the period when they owe you the duty to protect your interests.

If there are concerns later, the donor, the donor's personal representative or a trustee can ask the Court to order the attorney to pass accounts, and if the donor cannot make reasonable judgments, any interested person may apply. Any interested person may also apply to end an EPA if that is in the donor's best interests. After your death, the EPA ends and your executor or other personal representative takes over, not your former attorney automatically.

Alberta has no regulated EPA form, and the government recommends making one with a lawyer. Without an EPA, a trustee may have to be appointed by the court. Next steps:

• Make a short list of one main attorney and at least one alternate.
• Talk to each person before naming them.
• Think about a separate personal directive for health and living decisions, which is a different document.
• Ask a lawyer to confirm the wording, witnessing and any questions about corporations or payment.

Frequently asked questions