What is a Power of Attorney?
In Alberta, the law that creates Powers of Attorney is called the Powers of Attorney Act.
A Power of Attorney is a written, signed, dated and witnessed legal document. In this document, you (called the Donor) give someone else (your Attorney) the right to act on your behalf with respect to your financial affairs while you are still alive.
A Power of Attorney 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.
There are two types of Powers of Attorney:
The main difference between them is that a General Power of Attorney is only valid while you have mental capacity but an Enduring Power of Attorney continues in effect after you lose mental capacity.
What can an Attorney do?
Your Attorney will be able to do almost anything that you can do concerning your finances, unless you specifically limit their powers.
You should consider what kinds of financial decisions your Attorney will need to make. Will it be simple banking and paying bills? Or do you have investments or rental properties that your Attorney will need to manage?
Your Attorney can:
- deal with your real estate, including buying and selling property (if you specifically give them this power);
- prepare and submit your income tax returns and make any other tax decisions for you;
- use your assets for your maintenance, education, benefit, medical care and support;
- use your assets for the maintenance and support of your spouse or children;
- hire people to help you, such as service providers, lawyers, or accountants;
- maintain trusts for children or other beneficiaries;
- deal with any business interests or investments you have; or
- pay costs for personal decisions made under your Personal Directive.
General Powers of Attorney
A General Power of Attorney is best used in a situation where you temporarily need help with your financial affairs. For example, if you are injured and need someone to help you with your banking or other financial matters until your injury heals. Or you can draft one to say that your Attorney will be responsible for paying your bills from your chequing account while you are on a six-month winter vacation.
A General Power of Attorney will say how and when it comes into effect and when it stops being in effect. It may be effective for a certain period of time or until a certain event happens.
A General Power of Attorney is only valid while you have mental capacity. If you lose mental capacity, it is no longer effective.
Enduring Powers of Attorney
An Enduring Power of Attorney is used to manage your affairs for the long term. An Enduring Power of Attorney must state that it is to continue in effect even after you lose mental capacity. If it does not specify this, then it is not an Enduring Power of Attorney, and it cannot be used once you lose mental capacity.
Your Enduring Power of Attorney can come into effect in one of two ways:
- It can come into effect immediately once it is signed and continue on even if you become mentally incapable at some later date; or
- It can take effect only upon a specific future date or upon the occurrence of a specific event. A specific event might be when you lose mental capacity. This may be called a “springing” EPA as it “springs” into effect when the specific event happens. Your EPA should state who must make a written declaration that this specific date or event has occurred. You can give this power to your Attorney or to another person. If your EPA does not state who makes this written declaration, then two medical practitioners must make a written declaration.
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.
For more information, see the following CPLEA resources:
- General Powers of Attorney booklet
- Making an Enduring Power of Attorney booklet
- Being an Attorney under an Enduring Power of Attorney booklet
- Enduring Power of Attorney Checklist
- Adult Guardianship and Trusteeship Act booklet
If you would like copies of any of the above booklets, you can order them for free.