According to the Centre for Public Legal Education Alberta, an Enduring Power of Attorney (EPA), is a written, signed, dated and witnessed legal document. It gives someone else the right to act on your behalf with respect to your financial affairs while you are still alive.
An EPA does not give someone authority to make decisions about your health care or personal decisions - for that you need a separate document called a Personal Directive.
Your EPA only applies while you are alive and comes to an end when you die.
An EPA must state that it is to continue in effect even after you lose mental capacity. If your EPA does not specify this, then it is not an Enduring Power of Attorney, and it cannot be used once you lose mental capacity.
You should have an Enduring Power of Attorney because, if you suffer a serious injury or illness, you may become incapable of looking after your financial matters on your own. This is mental incapacity or infirmity. The law in Alberta does not allow for another person to automatically make financial decisions for you.
By preparing an Enduring Power of Attorney now, while you have mental capacity, you have more control and can ensure that your financial decisions will be made by someone who knows you and what you want.
Without an Enduring Power of Attorney, your family or another interested party will have to apply to the court under Alberta's Adult Guardianship and Trusteeship Act to become your trustee. This court process can take months, is complex, and can be very expensive. It may also result in someone managing your finances that you would not have chosen.
An Enduring Power of Attorney may not be effective outside of Alberta.
An EPA does not give someone authority to make decisions about your health care or personal decisions - for that you need a separate document called a Personal Directive.
Your EPA only applies while you are alive and comes to an end when you die.
An EPA must state that it is to continue in effect even after you lose mental capacity. If your EPA does not specify this, then it is not an Enduring Power of Attorney, and it cannot be used once you lose mental capacity.
You should have an Enduring Power of Attorney because, if you suffer a serious injury or illness, you may become incapable of looking after your financial matters on your own. This is mental incapacity or infirmity. The law in Alberta does not allow for another person to automatically make financial decisions for you.
By preparing an Enduring Power of Attorney now, while you have mental capacity, you have more control and can ensure that your financial decisions will be made by someone who knows you and what you want.
Without an Enduring Power of Attorney, your family or another interested party will have to apply to the court under Alberta's Adult Guardianship and Trusteeship Act to become your trustee. This court process can take months, is complex, and can be very expensive. It may also result in someone managing your finances that you would not have chosen.
An Enduring Power of Attorney may not be effective outside of Alberta.
Key Features of an Enduring Power of Attorney (EPA):
- Durability: Unlike a regular Power of Attorney, an Enduring Power of Attorney remains in effect even if you become mentally incapacitated. This is why it is called "enduring."
- Scope: The Enduring Power of Attorney can be as broad or as specific as you wish. You can grant your attorney authority over all your financial affairs or limit their powers to specific tasks, such as paying bills or managing investments.
- Activation: An Enduring Power of Attorney can take effect immediately upon signing or only when a specified event occurs, such as a medical determination of incapacity.
- Termination: An Enduring Power of Attorney remains in effect until you revoke it (while you are still mentally capable), you pass away, or a court cancels it.
Who should have an EPA?
The Government of Alberta recommends every Albertan over the age of 18 to have an enduring power of attorney.
Why You Might Need an EPA:
Financial Management:
During Incapacity: An Enduring Power of Attorney ensures that your financial affairs are managed according to your wishes if you are no longer capable of handling them yourself. This can include paying bills, managing investments, and handling property transactions.
Avoiding Court-Appointed Guardianship:
Without an Enduring Power of Attorney, if you become incapacitated, the court may appoint a trustee to manage your affairs. This process can be time-consuming, costly, and may result in someone you wouldn’t have chosen managing your affairs.
Reducing Stress for Loved Ones:
An Enduring Power of Attorney can alleviate the burden on your family members, as they won’t need to go through legal proceedings to gain authority over your finances during a difficult time.
Personal Control and Choice:
By creating an Enduring Power of Attorney, you maintain control over who will manage your affairs and how they will do so, ensuring your preferences are respected.
During Incapacity: An Enduring Power of Attorney ensures that your financial affairs are managed according to your wishes if you are no longer capable of handling them yourself. This can include paying bills, managing investments, and handling property transactions.
Avoiding Court-Appointed Guardianship:
Without an Enduring Power of Attorney, if you become incapacitated, the court may appoint a trustee to manage your affairs. This process can be time-consuming, costly, and may result in someone you wouldn’t have chosen managing your affairs.
Reducing Stress for Loved Ones:
An Enduring Power of Attorney can alleviate the burden on your family members, as they won’t need to go through legal proceedings to gain authority over your finances during a difficult time.
Personal Control and Choice:
By creating an Enduring Power of Attorney, you maintain control over who will manage your affairs and how they will do so, ensuring your preferences are respected.
Steps to Create an EPA:
- Choose Your Attorney: Select someone you trust implicitly, as they will have significant control over your financial affairs. It's advisable to name an alternate attorney in case your first choice is unable or unwilling to act.
- Draft the Enduring Power of Attorney: It’s best to have a lawyer assist in drafting the Enduring Power of Attorney to ensure it meets all legal requirements and accurately reflects your wishes.
- Sign the Document: You must sign the Enduring Power of Attorney in the presence of a witness. The witness cannot be the attorney, their spouse, or their adult interdependent partner.
- Inform Relevant Parties: Once the Enduring Power of Attorney is created, inform your appointed attorney and other relevant parties, such as your financial institutions, to ensure they are aware of the document's existence and its terms.
Conclusion
While an Enduring Power of Attorney is not legally required, it is highly advisable to have one if you want to ensure your financial affairs are managed according to your wishes in the event of your incapacity. An Enduring Power of Attorney provides peace of mind, reduces potential legal complications, and ensures that a trusted person oversees your financial matters. Consulting with a legal professional in Alberta can help you create an Enduring Power of Attorney tailored to your specific needs and circumstances.
More information
- View or download and print Making an Enduring Power of Attorney (Centre for Public Legal Education Alberta)
- Government of Alberta webpage on enduring powers of attorney