How To Get A Power of Attorney In Alberta
A Power of Attorney, otherwise known as an “Enduring Power of Attorney”, is a legal, written document that gives another person the authority to make financial decisions on your behalf if you become mentally incapacitated.
When you write an Enduring Power of Attorney, you’re called the “donor”, and the person you name is called the “attorney”. Your attorney should be someone you trust to manage your finances and estate—including money, property, and other assets—when you’re alive but incapable of making decisions for yourself.
An Enduring Power of Attorney is not a Personal Directive, which is a document that gives someone else the right to make decisions about your health. If you’re drafting a Power of Attorney, you may also want to draft a Personal Directive to cover all your bases.
Keep reading to learn:
- Why you should have a Power of Attorney
- it means to have mental capacity according to the law
- How to draft a legal Power of Attorney in Alberta
- Whom you can appoint as your attorney
- What your attorney can and can’t do
- When a Power of Attorney comes into effect
- How long a Power of Attorney lasts
- When to review and change your Power of Attorney
Why should you have a Power of Attorney?
Everyone over the age of 18 should have an Enduring Power of Attorney.
It’s not fun to think about worst case scenarios, but if you experience a traumatic injury that impairs your mental capacity, you may not be able to look after your own financial well-being.
If this happens to you in Alberta, provincial law doesn’t automatically assign a family member or close loved one to handle financial matters for you—they might have to go to court to get the authority they need to act on your behalf.
When you take action early and write an Enduring Power of Attorney, you’re doing two things:
- Giving someone you trust the power to make decisions about your financial and estate matters for you if you can’t
- Making someone else’s life easier in the event you’re unable to make financial decisions for yourself
What does it mean to have “mental capacity” according to the law?
To write an Enduring Power of Attorney in Alberta, you need to have the mental capacity to make one. No one can coerce you into drafting a legal Enduring Power of Attorney, and you definitely can’t write one after you’ve lost your mental capacity.
“Mental capacity” means some specific things by law:
- You know the approximate value of your property and assets
- You’re aware of your existing financial obligations to others
- You know the authority you’re giving to your attorney
- You’re aware of your right to revoke your Enduring Power of Attorney
- You understand the risks associated with handing over your financial responsibilities
How to draft legal Powers of Attorney in Alberta
In Alberta, an Enduring Power of Attorney must be:
- Written by someone 18 or older
- Dated and signed by the donor and a witness who are physically present to watch each other sign
- Clear that the Power of Attorney continues or springs into effect when the donor loses mental capacity
Some people who write Powers of Attorney are mentally capable of drafting the document, but they may be unable to sign it due to a physical disability. In that case, the Power of Attorney may be signed by another person on their behalf—but that person can’t be the assigned attorney or the attorney’s spouse or partner.
Who can be a legal witness to an Enduring Power of Attorney
Mostly anyone who is over 18 years old and is mentally capable can witness your Power of Attorney, but there are some limitations. A person can’t be a witness if:
- They are mentally incapable
- They are the attorney
- They are the spouse or partner of the attorney
- They are the spouse or partner of the donor
- They signed the Power of Attorney on behalf of the donor
- They are the spouse or partner of the person who signed the Power of Attorney on behalf of the donor
Where to store your Power of Attorney
Your Power of Attorney needs to be printed so it can be signed with ink for it to be legal, so you’ll need to store it in a safe place. Here are some good options:
- A fireproof safe in your home that your attorney can access
- With your attorney, co-attorneys, and alternate attorney (more on that below)
- With a lawyer, along with instructions on when to release it
Don’t forget to let your family members, accountant, or other trusted advisors know that you have an Enduring Power of Attorney. Make a list of everyone who has a copy, so you can follow up with them if you need to revise your Power of Attorney later.
Whom you can appoint as your attorney?
You can appoint anyone over the age of 18 who is also mentally capable to be your attorney.
But for your own sake, your attorney should also be someone you can trust. Remember that your attorney can quit the job if they want to, so you’ll want this person to care about your well-being … a lot. They also don’t need to live in Alberta, but it would probably be better if they did.
You can legally name more than one attorney, and specify whether or not they can act “jointly” or “separately” or both––“jointly and severally”. This can be helpful if one of the attorneys gets sick or travels, and the other needs to sign cheques or act in other ways on your behalf.
Be aware that naming co-attorneys may make things more complicated if decisions need to be made quickly. In your Enduring Power of Attorney, specify what should happen if there is a disagreement.
Always name an alternate attorney
If your primary attorney dies, becomes mentally incapacitated themselves, or quits, you’ll need a replacement. Always specify an alternate attorney.
The court does need to allow your attorney to renounce their duties if they want to quit. But if the court allows the renouncement and no one else named in your Power of Attorney begin to act on your behalf, your Power of Attorney will become invalid.
What your attorney can and can’t do
Unless you specify limitations in your Power of Attorney, your attorney can do basically anything you would be able to do with your assets.
Your Power of Attorney gives someone else the right to handle your financial affairs, including:
- Manage your real estate, including buying and selling property
- Prepare and submit your income tax returns
- Spend money from your bank accounts on your living expenses, education, and medical care
- Use your assets to support your spouse or children
- Hire people to help you, such as service providers, lawyers, or accountants
- Maintain trusts for children or other beneficiaries
- Handle business interests or investments
As long as your attorney follows the rules in Alberta’s Trustees Act, they’re acting in accordance with the law.
An attorney can’t:
- Make or change a Will for you
- Change or draft a new Power of Attorney for you
- Change or draft a new Personal Directive for you
- Change your designated beneficiaries on your RRSPs, pension benefits, or life insurance policies
- Make decisions about your healthcare or personal life outside your finances
When does a general Power of Attorney come into effect?
Your Power of Attorney can come into effect in one of two ways:
- Immediately once it’s signed––it would just continue when you become mentally incapable at a later date
- On a specific date or when a specific event happens, that event most likely being when you become mentally incapable
Your Power of Attorney should state the person who is authorized to declare you as mentally incapable, whether it’s your attorney or a doctor. If your Power of Attorney doesn’t specify this, two medical practitioners are required to make a written declaration.
How long does a Power of Attorney last?
Powers of Attorney last until:
- You die
- You cancel it
- A court decides it’s no longer valid to handle your financial affairs
- A court grants a trusteeship order to protect you
- Your attorney dies, quits, or becomes mentally incapable, and there’s no alternate to take over
When to review and change Powers of Attorney
You’ll want to review your Power of Attorney at least once a year and whenever your relationships change. If you grant Power of Attorney to your best friend with whom you have a falling out, you’ll probably want to seek legal advice and change your Power of Attorney right away.
You may also want to review your Power of Attorney if:
- Your attorney dies or becomes mentally incapable
- Your attorney says they’re having second thoughts about how to act in your best interest
- There are significant changes in your health that make you rethink your choice of attorney
Do I need a Power of Attorney if I have a Will?
Many people question whether it’s important to have a general Power of Attorney if they already have a Will. The simple answer is yes.
A Will deals with what happens when you’re no longer here. Powers of Attorney allow someone to step into your shoes during your life when you’re incapable of making decisions about your financial affairs. With a Power of Attorney, you’re deciding who will be able to make significant decisions for you while you’re still alive. And that’s pretty important.
That’s why creating an Enduring Power of Attorney is so important, and should be revised as often as is necessary. And the best part is, if you’ve chosen well, you’ll also have peace of mind that someone you trust is taking care of you when you may not be able to.