Enduring powers of attorney
An Enduring Power of Attorney is an important legal document you can use to appoint someone to make financial and legal decisions on your behalf. If you are the one passing the authority to someone else you are called the donor. The person you pass the authority to is called the attorney. A Power of Attorney is "enduring" because its power continues after the donor becomes mentally incapacitated or it can take effect after the donor becomes mentally incapacitated.
- Choosing an attorney
- Keep your Power of Attorney current
- Cancelling an Enduring Power of Attorney
- When a donor dies
- Other things to consider
Choosing an attorney
The attorney should be someone you trust and are confident will act in your best interest. Your attorney should also have the knowledge and experience to be able to deal with your property and finances. It is also important to ask the attorney beforehand to ensure that they are willing to accept the appointment. If you are considering appointing a financial institution, you will want to ensure that you are aware of any fees that may be charged.
- Any adult or financial institution can be appointed to act as attorney;
- The attorney appointed does not have to live in Alberta;
- You can appoint both a person and financial institution to act;
- The Public Trustee cannot act as an attorney.
Keep your Power of Attorney current
A donor should periodically review the Enduring Power of Attorney to ensure the powers, terms and choice of attorney remain current.
Cancelling an Enduring Power of Attorney
The donor can cancel an Enduring Power of Attorney in writing, as long as the donor has the mental capacity to do so. When this happens, the donor has the option of replacing the person originally selected as attorney. The attorney and all other parties relying on the original Enduring Power of Attorney must be immediately notified in writing. Another Enduring Power of Attorney should be executed right away to make sure there is someone to handle financial and legal decisions.
When a donor dies
When the donor dies, the Enduring Power of Attorney ends and the attorney must then account for all of the donor's property and report to the personal representative of the deceased's estate.
Other things to consider
You may want to hire a lawyer to help
While you don't have to hire a lawyer to have an Enduring Power of Attorney made, it is recommended. A lawyer can guide you through the process. They can explain safeguards and help you better understand possible limitations and powers. They can also help you make sure the Enduring Power of Attorney is drafted so it only takes effect when the donor becomes sufficiently disabled, and they can review the document periodically with you. Often, a lawyer will prepare an Enduring Power of Attorney in combination with a Will and a Personal Directive.
To give someone the authority to look after your personal and non-financial matters you will need a different document called a Personal Directive.
You can make a Personal Directive which appoints an Agent to make personal and non-financial decisions on your behalf if you become mentally incapacitated and unable to make these types of decisions yourself. If you become mentally incapacitated and do not have a Personal Directive, then someone may need to go to Court to obtain an order appointing a co-decision-maker or a guardian who will make decisions in your best interests.
If your attorney refuses to act, then someone will need to go to Court and be appointed your trustee.
This person can be any adult, a trust company, or, as the last resort, the Public Trustee. The court may appoint a trustee only if the court is satisfied that less intrusive and less restrictive alternative measures than the appointment of a trustee will not adequately protect the donor's interests in respect of financial matters, and the proposed trustee will act in your best interest and is suitable having regard to your wishes if ascertainable, the trustee's relationship to you, the ability of the trustee to effectively mange your finances, and any circumstances, including the trustee's place of residence, that could impair the court's ability to oversee and control the trustee.
- Understanding Enduring Powers of Attorney - Represented Adults
September 01, 2010