Who Decides a Person Has Lost Capacity Under an Alberta EPOA?

If you are named as attorney in a springing enduring power of attorney, you cannot simply start acting because a relative seems less capable. The document usually sets a trigger, and someone has to confirm it has happened.

This article explains how that trigger is decided under Alberta's Powers of Attorney Act, what your duties are once it happens, and where to turn if others disagree.

This article covers the law of Alberta.

What a springing EPOA is

An enduring power of attorney may take effect at a future time or on a contingency such as incapacity [Powers of Attorney Act s 5(1)]. The Alberta government describes two common versions: one that starts immediately and continues after incapacity, and one that starts only on incapacity. A springing power is the second kind.

For the document to work at all, the donor must have understood it. An EPOA is void if the donor was mentally incapable of understanding its nature and effect when signing. Later incapacity does not end it.

Who decides that capacity has been lost

Start with the document. If it names who must declare that the contingency has occurred, the document governs. The Alberta page says the document should say who makes the written declaration.

If no one is named to decide, incapacity is established when 2 medical practitioners declare in writing that the contingency has occurred. Keep that written declaration safe, because banks and others may ask to see it.

The last row is a different document with different rules, so do not use it for an EPOA. Also, the Office of the Public Guardian and Trustee cannot assess capacity or provide legal advice.

What you must do once the power is active

Under section 8, once the attorney knows or should know the donor cannot make reasonable judgments, the attorney must protect the donor's interests, unless the document provides otherwise. Waiting for formal paperwork may not excuse ignoring obvious signs.

Reasonable steps are practical ones, and a lawyer can tailor them.

• Read the document closely for the trigger and who must declare it.
• Get the written declaration from the right people and keep copies.
• Keep clear notes of what you do on the donor's behalf; how you should handle the donor's money depends on your situation, so it is worth confirming with a lawyer.
• Keep receipts and statements, because the Court may order an attorney to pass accounts.
• Tell close family what is happening, which can reduce disputes.

When others disagree or the role changes

If others disagree with how an attorney is acting, any interested person may apply to the Court to terminate the power if that would be in the donor's best interests. The Court cannot appoint a substitute attorney but may direct a trusteeship application and appoint an interim trustee. The Court may order an attorney to pass accounts, and the donor or the donor's personal representative may apply, or any interested person if the donor cannot make reasonable judgments.

The Office of the Public Guardian and Trustee cannot investigate complaints against an attorney acting under an EPOA. Concerns go to court instead.

An EPOA ends when a trusteeship order is granted in respect of the donor or the attorney. An attorney needs Court permission to renounce while the section 8 duty to protect the donor's interests applies. The donor can revoke the EPOA in writing only while mentally capable of understanding the revocation.

What to do next

Before you act, confirm the trigger in the document and get the declaration in writing. If the document is unclear, if the doctors disagree, or if family members are challenging you, speak with a lawyer before making significant decisions. Keeping careful records from day one is the best protection for you and for the donor.

Frequently asked questions