This web page was prepared as a public service to Albertans by the Office of the Public Trustee of Alberta Justice.
This web page is intended to give information about Enduring Powers of Attorney. It is not intended to give legal advice for which a lawyer should be retained. The law and its interpretation by the Courts frequently change.
The Public Trustee does not warrant the outcome or result of using the information in this web page.
This web page first explains what a "Power of Attorney" is and then explains in detail what an "Enduring Power of Attorney" is.
A Power of Attorney is an arrangement where authority is given by a donor to an attorney to deal with the property of the donor. The person giving the authority is called a donor, principal or grantor. The person receiving the authority is called the attorney, donee or agent. In this publication, the terms "donor" and "attorney" will be used.
A donor must be mentally competent to give a Power of Attorney. If the donor becomes mentally disabled after the Power of Attorney is signed, the attorney loses legal authority to act on behalf of the donor.
Powers of Attorney are widely used. Some examples are as follows:
- A donor leaving the country for an extended vacation may appoint an attorney to manage the donor’s property during his absence.
- A person confined to a hospital bed can appoint an attorney to handle routine bill payments using a Power of Attorney for a specific bank.
- A landlord can appoint a rental agent to collect rent in an apartment complex.
What is an Enduring Power of Attorney?
An "Enduring Power of Attorney" is a Power of Attorney that contains a clause stating that the powers remain in effect after a donor suffers a loss of capacity.
There are two types of Enduring Powers of Attorney:
- It takes effect immediately and specifically states that it is to continue even if the donor becomes mentally disabled.
- It takes effect when the donor becomes mentally disabled or some other specified event occurs. (This is often called a "Springing Power of Attorney.")
An Enduring Power of Attorney must 1:
- be in writing and dated,
- be signed by the donor in the presence of a witness,
- be signed by the witness in the presence of the donor, and
- contain one of the following statements
- it is to continue notwithstanding any mental incapacity or infirmity of the donor that occurs after the execution of the Power of Attorney, or
- it is to take effect on the mental incapacity or infirmity of the donor.
Enduring Powers of Attorney have only been in force since the enactment of the Powers of Attorney Act on June 25, 1991.
Must I see a lawyer to have an Enduring Power of Attorney made?
No. The Powers of Attorney Act used to require a lawyer to complete a Certificate of Legal Advice, which accompanied the Enduring Power of Attorney. This requirement was done away with by amendments made to the Powers of Attorney Act on December 1, 1997.
Although the Act no longer requires a lawyer’s involvement, it is recommended you see a lawyer to
- prepare an Enduring Power of Attorney,
- explain safeguards which can be incorporated into an Enduring Power of Attorney,
- limit or enable an attorney to perform certain functions,
- ensure that the Enduring Power of Attorney is drafted in such a way that it comes into effect only when the donor has become sufficiently disabled,
- periodically review an Enduring Power of Attorney.
Often, a lawyer preparing an Enduring Power of Attorney does so in conjuntion with the preparation of a Will and a Personal Directive (a "living will").
Who can act as an attorney under an Enduring Power of Attorney?
Any adult can be appointed as an attorney. An attorney does not have to be a resident of Alberta to act for someone living in Alberta or deal with property located in Alberta.
A donor can appoint more than one attorney. An attorney can be a person, a financial institution or a combination of both.
A donor should be very careful when choosing an attorney. The donor should have confidence that the person chosen will act in the best interests of the donor and have sufficient expertise to deal with the donor’s property.
The donor should ensure that the chosen attorney is aware of the Enduring Power of Attorney and agrees to being appointed.
The Public Trustee cannot act as an attorney.
How is a donor protected if they have an Enduring Power of Attorney?
A donor should periodically review the Enduring Power of Attorney to ensure that the powers, terms and choice of attorney remain current.
Once an Enduring Power of Attorney is in effect, any interested party can make a Court application
- to have the attorney provide accounts to the Court for review and approval.
- for a Court Order to terminate the Enduring Power of Attorney. This is possible if it is shown to be in the best interests of the donor.
How can a donor cancel an Enduring Power of Attorney?
The donor can revoke an Enduring Power of Attorney in writing, as long as the donor is mentally capable.
How can a donor replace the person originally selected as attorney?
The donor can revoke the appointment in writing and appoint another person, as long as the donor is mentally capable.
What happens when the donor dies?
The Enduring Power of Attorney ends. The attorney must then account to the personal representative of the deceased donor’s estate.
Are Enduring Powers of Attorney registered?
No. There is no Registry for Powers of Attorney in Alberta.
Are there other options available to assist a person when they are no longer capable?
Yes. An Enduring Power of Attorney, Personal Directive, Trusteeship Order, and Guardianship Order are the most common options available to assist a person with their finances and personal decision making.
Two of the most important differences between these documents are the purpose of the document and who appoints the party to act. Those differences are set out below:
- Enduring Power of Attorney - donor appoints an attorney to make financial decisions and manage the property of the donor in the event that the donor loses capacity.
- Personal Directive - donor appoints an agent to make personal decisions if that person loses capacity.
- Trusteeship Order - Court appoints a trustee to manage the disabled person’s finances and property.
- Guardianship Order - Court appoints a guardian to make personal decisions for the disabled person
1Section 2 of the Powers of Attorney Act