Being an Attorney Under an Enduring Power of Attorney – How Can It Go Wrong?

How can it go wrong?

Some of the most common problems

What if I can’t find the original Enduring Power of Attorney?

If the original Enduring Power of Attorney is not at the Donor’s home, it may be in a safety deposit box or at the office of the lawyer who drafted it. To look in the safety deposit box, phone the bank and make an appointment. Take the key, the Declaration of Incapacity and your own identification.

If you have checked the Donor’s safety deposit box and lawyer’s office and you still can’t find the original EPA, check with the Donor’s relatives and close friends. They may know where it can be found. If the lawyer who drafted the document is no longer in practice, you can contact the Law Society of Alberta, Information Management Services. It will search its records to see if it can help you find the missing original document.

Without at least a copy of the Enduring Power of Attorney, it is impossible to proceed. You must apply to the court for what is called “trusteeship”. You become the trustee rather than the Attorney.

I found an Enduring Power of Attorney that is handwritten, signed, and dated, but no one else witnessed it. Is it valid?

No. In Alberta, although an Enduring Power of Attorney can be handwritten, all legal requirements must be met. This includes the signature of at least one witness. The witness must see the Donor sign the document and the Donor must see the witness sign the document at the same time.

What if I have disagreements with the other Co-Attorneys?

If the Co-Attorneys do not agree, it may cause problems.

For example, if one Co-Attorney wants to the sell the house and the other disagrees, there will be no sale. If you have serious disagreements with other Co-Attorneys you may need to contact a lawyer. Disputes may have to be settled in court.

If there is more than one Attorney, you are legally responsible for what the other Attorney does.

For example, if the other Co-Attorney takes funds from the estate, you have to make up the loss. You can then sue the other Co-Attorney.

What if the Donor’s family members are fighting?

How you proceed within the direction of the Enduring Power of Attorney is up to you, but keeping the peace may help avoid even more problems later. Setting a plan, then sharing that strategy with all the affected loved ones at the same time, may build trust and provide a setting where they hear each other ask questions and get answers. Keeping all the affected loved ones informed also helps develop confidence in your actions.

If you are the Attorney and the Donor’s loved ones disagree with your decisions on how to proceed, you may wish to obtain the advice of a lawyer. You may ultimately have to apply for directions from the Court of Queen’s Bench.

What if I do not exactly follow the directions in the Enduring Power of Attorney?

An Attorney must follow the directions of the Donor as expressed in the Enduring Power of Attorney as well as the provisions of the Trustee Act. If an Attorney fails to act reasonably, or acts in a way that is not at all consistent with the Power of Attorney or the Trustee Act, interested parties can take legal action to have the Attorney held accountable. An Attorney who acts in an irresponsible manner may be liable for his or her actions.

If you are the Attorney and the Donor’s loved ones disagree with your decisions on how to proceed, you may wish to obtain the advice of a lawyer. You may ultimately have to apply for directions from the Court of Queen’s Bench.

What happens if the Donor’s money runs out?

If it appears that funds may run out, get immediate advice from a lawyer so that you do not become personally liable for the debts. In addition, you may wish to contact government and social services agencies to find out whether there is funding for which you can apply. Take these steps well in advance of the money actually running out.

What do I do if I think that I made a mistake?

Remember that no one is perfect. That said, you are legally responsible for the financial situation of another person and the situation should be treated with great care. Consider talking to your lawyer about the issue and, if necessary, ask the Court of Queen’s Bench of Alberta for advice and direction.

If you are the Attorney and the Donor’s loved ones disagree with your decisions on how to proceed, you may wish to obtain the advice of a lawyer. You may ultimately have to apply for directions from the Court of Queen’s Bench.

You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. December 2016.
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