Enduring Power of Attorney (Alberta)
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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, you should seek professional assistance.
What is an Enduring Power of Attorney?
This legal form can be used by someone (called a Donor) to appoint another person (called an Attorney) to manage their property and financial affairs. It is called “Enduring” because it continues to be in effect even after the Donor becomes mentally incapacitated.
The word “Attorney” does not mean that the person is or becomes a lawyer. They are simply the person appointed as such and nothing more. “Enduring Powers of Attorney” are governed by the Powers of Attorney Act, R.S.A. 2000, c P-20. The word “Enduring” which appears in front of “Power of Attorney” means that the Power of Attorney includes a statement that it is to take effect on the mental incapacity or infirmity of the Donor OR it is to continue notwithstanding any mental incapacity or infirmity of the Donor that occurs after the execution of the power of attorney. If the Power of Attorney is NOT “Enduring”, then it will cease to have effect when the Donor becomes incapacitated.
Why do you need an Enduring Power of Attorney?
The most common reasons to have an Enduring Power of Attorney include:
- being able to manage your property and finances if you become ill, incapacitated, or suffer a serious injury; and
- being able to manage your property and finances while you travelling away from Alberta for an extended period of time.
Examples of where an Enduring Power of Attorney comes in handy include: signing papers to purchase a residential home, transferring money into or out of a bank account, managing a business, or suing or defending yourself in a lawsuit. The benefits of having an Enduring Power of Attorney for Property include having control over who makes decisions on your behalf (and sometimes how they make those decisions) concerning your property and finances when you can no longer do so. Also, having an Enduring Power of Attorney for Property can help avoid litigation (and the wasted time, money, and effort) to see who will be appointed to be your trustee under the Adult Guardianship and Trusteeship Act, S.A. 2008, c A-4.2.
What if you don’t have an Enduring Power of Attorney?
If you do not have an Enduring Power of Attorney, your financial affairs are not automatically transferred to family members (a common misconception). Rather, someone must apply to the court to become “trustee” of property. They do this by making a “Trusteeship” application under the Adult Guardianship and Trusteeship Act, S.A. 2008, c A-4.2. This application requires, among other things, a capacity assessment report respecting the adult who is the subject of the application and a trusteeship plan in the prescribed forms. In coming to a decision, the Court will examine whether the adult has sufficient capacity to making decisions respecting their financial affairs, assess whether less intrusive and less restrictive measures are available to adequately protect the adult’s best interests in respect of financial matters, and determine whether it is in the interests of the adult to appoint a trustee (given various factors). In general, the government (i.e. the Public Trustee under the Public Trustee Act, S.A. 2004, c P-44.1) does not step in to help; rather, it acts only in situations where no other suitable person is available, able and willing. This court process can be lengthy, costly and emotionally draining. It can also result in disagreements among your family members and friends, with the end result being that authority is given to someone whom you yourself might not have chosen.