Understanding Enduring Power of Attorney in Alberta

Why would you need an EPA?

Anna Dunaeva DLegal Anna Dunaeva February 7, 2023
DLegal Law Office - bisycle

If you lose the mental capacity to manage your affairs, someone needs to step in to make decisions on your behalf. However, rather than having the Alberta Courts appoint a representative, wouldn’t you rather choose this person for yourself?

In Alberta, an Enduring Power of Attorney is a legal document that allows you to appoint another person to make financial decisions on your behalf in the event that you are unable to do so. This can be helpful if you become incapacitated. Assigning someone as your Enduring Power of Attorney is a key part of any healthy will and estate plan.

If you need assistance with an Enduring Power of Attorney, contact us today. Our estate planning lawyers are here to simplify this process for you.

What is a Power of Attorney in Alberta

A general Power of Attorney is a legal document that allows someone to appoint another person (called an “attorney”) to make decisions about their property and finances on their behalf. The person granting the Power of Attorney will be referred to as the “grantor,” while the person appointed will be called the “attorney.”

A general Power of Attorney will typically expire when the grantor, or the principal, becomes incapacitated, dies or revokes their Power of Attorney by writing a document specifically stating the revocation of powers.

An Enduring Power of Attorney differs from a standard power of attorney in that it enables an individual or “grantor” to appoint a trusted friend, family member, or professional to make decisions on their behalf even if the grantor becomes mentally incapable. An Enduring Power of Attorney will not end automatically like it would with a standard arrangement.

Enduring Power of Attorney in Alberta

An Enduring Power of Attorney gives your attorney authority over your financial and estate matters. Your attorney can act on your behalf even if you become unable to make decisions or take action for yourself. However, they do not have the licence to make medical decisions – that is up to the Personal Directive.

Typical duties of someone with enduring powers might include but are not limited to:

  • Tracking finances and paying bills
  • Preparing tax returns
  • Paying maintenance to dependents, such as minor children
  • Maintaining trusts for beneficiaries
  • Managing properties and other investments
  • Hiring professionals to help support the grantor’s financial well-being, such as accountants
  • Paying for all aspects of grantors’ wellbeing, including medical care

A person is deemed mentally incapacitated when they don’t understand the consequences of a decision or lack thereof. For example, this could be the result of old age, an accident, or a medical illness such as dementia. However, in some instances, someone may be deemed incapacitated in some areas of their life, but not all.

Who Should Be Appointed Your Enduring Power of Attorney?

The person you appoint as your Enduring Power of Attorney should be someone you trust implicitly. This is because they will be responsible for making financial decisions on your behalf in the event that you become incapacitated or unable to make decisions yourself.

They should be reliable, organized, and have a good understanding of the law and financial matters. Ideally, this person should understand your wishes and values, so they can make decisions in line with those wishes and values if the need arises.

Another important consideration when selecting an Enduring Power of Attorney in Alberta is making sure they are aware of their duties under the law. Your chosen attorney must adhere to specific standards set by provincial legislation, such as the Alberta Trustee Act, when acting on your behalf – meaning they must always act honestly, loyally, and according to your instructions.

In addition, they are required by law to keep proper records of all transactions related to carrying out their duties as an Enduring Power of Attorney. This helps ensure accountability if any issues arise down the line and safeguards against potential fraud or abuse.

You might also want to name an alternate attorney. This would be the person who would take over as Enduring Power of Attorney if the original attorney dies, suffers mental incapacity themselves, or refuses to take on the responsibility.

Can You Choose More Than One Enduring Power of Attorney?

Yes, you can choose more than one Enduring Power of Attorney. Besides selecting an alternate attorney, you may decide that two or more people can work together to manage your financial affairs if necessary. In addition, appointing multiple attorneys can reduce the risk of any one person taking advantage of their position or mismanaging your estate.

In this case, it is important for there to be clear communication between all parties involved in making decisions on behalf of the person granting Enduring Power of Attorney. Having a clear line of communication allows for better decision-making as well as an understanding between each attorney regarding specific responsibilities such as overseeing personal bank accounts or business matters separately.

However, if you decide to appoint more than one attorney, you must state in the legal documents how you would like decisions to be made. You may choose that all decisions must be agreed upon together as “joint” attorneys, but in this case, it can bring things to a standstill if one Enduring Power of Attorney can not be reached or the pair can not come to a mutual decision.

Another option is to give your power attorney’s the option to act separately. However, again this has both pros and cons. You won’t have to worry about standstills. However, it will give each Enduring Power of Attorney the power to act without the consent of the other, which can lead to conflict.

When choosing multiple attorneys, it is important to consider all aspects of decision-making for which an attorney might be needed and ensure each attorney knows their roles and responsibilities. It is also important to ensure that multiple attorneys are able to work together effectively in case there is ever a disagreement between them on how best to honour the wishes of the grantor.

When Should Someone Create an Enduring Power of Attorney?

It is essential to create an Enduring Power of Attorney before it is needed. If a person does not have one in place, then it becomes much more difficult for family members or friends to manage their affairs on their behalf should they become incapacitated. They may have to go through complex paperwork and lengthy legal proceedings.

Therefore, it is recommended that any mentally capable person over the age of 18 create this written document. This way, they can rest assured that someone they trust will be making decisions on their behalf if they suffer mental incapacity in the future.

How to Make an Enduring Power of Attorney in Alberta

It is highly advisable that you seek the advice and counsel of an experienced lawyer when setting up an Alberta Enduring Power of Attorney. Having a lawyer draft this document will ensure that all legal requirements are met and that your wishes and intentions are accurately reflected in the document.

Wills and estate planning lawyers are professionals who are well-versed in the laws and regulations related to this document. They understand the implications of what they are drafting and can ensure that all legal requirements are met.

Personal Directive vs Enduring Power of Attorney in Alberta

An Enduring Power of Attorney is a legal document that allows you to choose a person or persons to make decisions related to your money and business matters. A Personal Directive, on the other hand, is a legal document that allows you to choose a person or persons to make decisions related to your medical care and treatment if you become unable to communicate those wishes themselves.

A Personal Directive gives individuals the legal power to make decisions related to medical treatments and end-of-life decisions if you become incapacitated. This document can also set out details such as organ donation requests or preferences for palliative care in advance, so there is no confusion among family members if these issues arise later on down the line.

It is important to understand that both documents serve distinct functions and have different implications when it comes to decision-making. Individuals should consider both documents carefully when deciding how they would like their affairs managed should they lose mental capacity to do so themselves.

How to Ensure Your Enduring Power of Attorney is Legally Binding?

In order to make an Enduring Power of Attorney legally binding in Alberta, it is necessary to follow specific rules and guidelines. First, the document should be written and signed by both the signor or the grantor (the person giving authority) and the attorney (the person receiving authority). Both parties must also be physically present and of sound mind when signing.

The document must also include certain key elements such as:

  • The names of the grantor and attorney
  • A clear description of the powers being granted to the attorney
  • Any restrictions or conditions on those powers
  • A date when the power takes effect
  • The name of any alternate attorneys designated by the principal
  • A clause specifying how the document can be revoked, amended, or renewed

Two witnesses who are not related to either party must also sign the document in order for it to be legally valid. It is also important to note that different provinces may have additional requirements for Enduring Power of Attorney, so it is wise to check with local laws before creating one.

Reviewing Your Enduring Power of Attorney Document

When it comes to reviewing power of attorney documents, it is crucial to stay on top of any changes that might happen in the future. It’s a good rule of thumb to review these legal documents at least once a year, if not more often. This will ensure that everything regarding who can access your money and assets is up to date with current laws, regulations, and your wishes.

If you are undergoing a major life change, such as marriage or a birth in the family, then these documents should also be reviewed or updated accordingly. Keeping an eye on Enduring Power of Attorney documents is key for avoiding financial pitfalls in the long run and ensuring your financial affairs are managed according to your preferences.

Alberta Enduring Power of Attorney

Individuals should seek professional advice from a lawyer before signing an Enduring Power of Attorney in order to ensure that their rights are fully protected. This is especially important if there are complex matters involved, such as investments or multiple dependents who need to be taken care of in case something happens to you.

An Enduring Power of Attorney is an incredibly important legal document for those who want to retain control over their lives and financial decisions even when they become unable to do so themselves. It is vital to create this document before it becomes necessary, as it can help protect your rights and interests if the time comes.

If you are interested in assigning an Enduring Power of Attorney, then get in touch today. At DLegal, we provide Calgary legal guidance in all aspects of your estate planning.


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