Who Decides You Have Lost Capacity Under an Alberta EPA?

You may have been named as an attorney, or you may be a family member who is worried about a parent or spouse. Either way, the same question comes up: when does an enduring power of attorney actually start working, and who gets to say the person can no longer manage?

The answer depends heavily on the wording of the document. This article explains the general rules in Alberta, what happens if people disagree, and what to do if you are unsure where you stand.

This article covers the law of Alberta.

When an enduring power of attorney takes effect

An enduring power of attorney, often called an EPA, can take effect at a future time or on a contingency such as incapacity. In practice, an EPA can start immediately and continue after the person becomes incapable, or it can start only once incapacity occurs.

Because of this, the first step is always to read the document itself. If it says the power starts immediately, it can continue after the donor becomes incapable. If it says the power starts only on incapacity, the trigger described in the document matters.

Who must say the donor has lost capacity

The person who made the EPA is called the donor. If the document does not name anyone to decide whether the trigger has happened, incapacity is established when 2 medical practitioners declare in writing that the contingency has occurred. If the document does name who must make the declaration, the document governs.

Good documents say who makes the written declaration. The Office of the Public Guardian and Trustee (OPGT) cannot assess capacity or provide legal advice.

What an attorney must do once the donor cannot decide

Once the attorney knows or should know that the donor cannot make reasonable judgments, the attorney must protect the donor's interests, unless the document provides otherwise. How this duty applies in a particular case depends on the facts, so it is worth confirming with a lawyer.

An attorney who wants to step away needs Court permission to renounce while that duty to protect the donor's interests applies. Later incapacity of the donor does not end the EPA.

• Read the document carefully for start dates, triggers and named decision-makers.
• Keep clear records of everything you do with the donor's money and property.
• Keep the donor's finances separate from your own.
• Ask a lawyer before acting if the wording of the trigger is unclear.

If family members disagree with the attorney

If others disagree with an attorney, 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 it may direct a trusteeship application and appoint an interim trustee.

The Court may also order an attorney to pass accounts. The donor or the donor's personal representative may apply for this, and so may any interested person if the donor cannot make reasonable judgments.

Complaints about an attorney acting under an EPA do not go to the OPGT, which cannot investigate them. Instead, concerns about an attorney can be taken to the Court through the applications described above.

How an EPA can end, and what to do next

An EPA is void if the donor was mentally incapable of understanding its nature and effect when signing. The donor can revoke it in writing only while mentally capable of understanding the revocation. An EPA also ends when a trusteeship order is granted in respect of the donor or of the attorney.

• Find the signed EPA and read when and how it starts.
• Check whether it names who must declare incapacity.
• If it does not, ask about getting written declarations from 2 medical practitioners.
• Keep a written record of any declaration you receive.
• If family members disagree, speak with a lawyer before the dispute reaches court.

Frequently asked questions