Being an Attorney Under an Enduring Power of Attorney – What happens when…?

What happens when…?

Things to know about being an Attorney

I have just agreed to be someone’s Attorney. What information should I get right now?

Getting some information from the Donor when the EPA is created may make your job easier when it comes into effect. Some things you should know include:

  • where the original Enduring Power of Attorney is kept and how to access it;
  • where a notarized copy of the Enduring Power of Attorney is, so that you will have it when the time comes;
  • specifics about property the Donor owns and any debts the Donor has;
  • whether any property is owned jointly with others;
  • whether beneficiaries are named for specific pieces of property;
  • additional details about the Donor’s financial and legal wishes, especially with respect to any wishes that you or the Donor feel might lead to disputes or disagreements;
  • details about how the Donor’s loss of mental capacity will be diagnosed;
  • the names and contact details of any other Attorneys (appointed in an Enduring Power of Attorney), Agents (appointed in a Personal Directive) and Personal Representatives (appointed in a Will);
  • whether anyone will be reviewing your decisions as Attorney (who you will need to keep informed);
  • whether you will be paid a fee for your services as Attorney;
  • the names and contact details of any other people who have a copy of the EPA;
  • the names and contact details of any people that you are to notify when the EPA comes into effect; and
  • whether the Donor has property outside of Alberta and whether or not the Enduring Power of Attorney will be accepted in that jurisdiction.

The Donor may not want to share all of this information with you in advance but they should be made aware that you will need it once your powers take effect. Be sure to ask the Donor to let you know of any updates or changes to his or her Enduring Power of Attorney, Personal Directive and Will and to give you updated copies of these documents.

How does an Enduring Power of Attorney come into effect?

Donors can choose one of two ways for their Enduring Powers of Attorney to come into effect:

  • it can take effect immediately when it is signed and continue if the Donor becomes mentally incapable of managing their financial affairs; or
  • it can take effect only upon a specific future date or upon the occurrence of a specified event, which may include but is not limited to the mental incapacity or infirmity of the Donor.

If the Donor chooses that the EPA will come into effect when they lose mental capacity, a Declaration of Incapacity document will have to be signed when that occurs. This Declaration conclusively confirms that for legal purposes, the Donor no longer has mental capacity. These forms are available from hospitals, care facilities and doctors.

The EPA can (but does not have to) say who is to sign the Declaration of Incapacity. If it does, then whoever is named must sign the Declaration. The Attorney under the EPA can be the person named to make this decision. The written Declaration is regarded as conclusive that the specified contingency has occurred. If the EPA does not say who is to make the Declaration, then two medical practitioners must complete the form.

As an Attorney, what property will I be dealing with?

A Declaration of Incapacity confirms that for legal purposes the Donor no longer has mental capacity

Unless the Enduring Power of Attorney restricts the Attorney’s powers, you will be able to do almost anything that the Donor could have done with his or her financial affairs and property, including investments, vehicles, bank accounts, pensions, business assets and insurance policies. You could even start or defend a lawsuit with respect to any of these assets.

If the Donor wishes the Attorney to have the power to sell or purchase real estate (houses, land, vacation property), the Donor must give that power explicitly in the EPA because of Alberta Land Titles registration policies.

The Donor can also limit the Attorney’s powers to dealing with specific assets if he or she chooses.

For example, if the Enduring Power of Attorney says that you only have power over the Donor’s stock portfolio, then your power is limited to that asset. In this scenario, you would not have the power to sell the Donor’s home.

Is an Enduring Power of Attorney valid if it was made in another province?

If the Donor made an Enduring Power of Attorney that was valid in another province, you may be able to act under that document. It would be best for you or the Donor to check with the court or with a lawyer in the other province.

The Donor has property outside of Alberta. How would I deal with that property?

If a Donor has made a valid Enduring Power of Attorney in Alberta, that power may be valid in other provinces, but it is possible another province or country may have different laws and choose not to accept it. If the property is real estate, the EPA must specifically give you the power to sell it. You or the Donor should check with a lawyer in the place where the property is located.

Can I get help from professionals for my duties as an Attorney?

Yes. Although many Attorneys do the work themselves, an Attorney can get help from friends and family members and also from a lawyer, accountant or other professional.

For your peace of mind, you may wish to obtain an assessment when you are selling or disposing of valuable assets such as real estate, collectables and antiques. Reasonable professional fees and costs of appraisals are paid for out of the Donor’s resources. You should ask beforehand about the cost for the services provided. Even if you obtain such help, you remain legally responsible. The Attorney must make the decisions, watch over everything, and keep accurate records.

I have heard that an Attorney’s powers can be limited by law. What does this mean?

All Attorneys are governed by the provisions of the Alberta Trustee Act. This Act restricts some of the kinds of actions that an Attorney can take.

For example, when investing the funds of the Donor, an Attorney may only choose certain kinds of investments. For more information, please consult the Trustee Act or a lawyer.

Are there things that an Attorney can never do?

Yes. By law, an Attorney cannot change the Donor’s Will, make a new Will for the Donor, or give a new Power of Attorney on behalf of the Donor. Furthermore, an Attorney must always act in the best interests of the Donor and must never do anything to financially hurt the Donor.

When does my responsibility as Attorney end?

Your responsibilities continue until one of the following occurs:

  • the Donor dies;
  • the Donor revokes the EPA while he or she still has capacity;
  • the Donor recovers sufficiently to resume control of his or her own affairs;
  • the Court of Queen’s Bench of Alberta determines that the Enduring Power of Attorney ceases to have effect; or
  • the Attorney dies or quits.

It is possible that the Donor might limit the powers of the Attorney to
specific assets.

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