What goes into an Enduring Power of Attorney?

What goes into an Enduring Power of Attorney?

Common questions about what to include in an Enduring Power of Attorney

What should I consider in making an Enduring Power of Attorney?

When making an Enduring Power of Attorney, you should carefully consider what type best suits your needs, who your Attorney will be and exactly what powers you wish to give that Attorney. What instructions will you give them? If you want your Attorney to be able to sell real estate such as your home or cottage, you must give them this explicit power.

If you make an EPA that takes effect immediately, would you still like to work with your Attorney to make financial decisions together; would you like your Attorney to take over all responsibility for your financial decision-making; or would you like something in-between, such as being consulted on major decisions?

If you want your Attorney to be able to sell real estate such as your home or cottage, you must give them this explicit power.

What powers will my Attorney have under my Enduring Power of Attorney?

Unless you restrict your Attorney’s powers, he or she steps into your shoes and will be able to do almost anything that you can do concerning your finances. Your Attorney must always act in your best interests, and is responsible for such things as:

  • consulting with you as long as you are mentally competent and to the extent that you desire, to make decisions about your financial matters together;
  • taking over the managing of your financial assets and liabilities for what may turn out to be a lengthy period of time, when asked to do so or when you lose mental capacity;
  • using your assets first for your support and care, and then, if assets are available, for the support of your dependents;
  • paying your bills;
  • preparing and submitting your income tax returns;
  • maintaining trusts for any dependent children (if any trusts have been created);
  • starting or defending a lawsuit;
  • buying, changing and re-investing liquid assets such as Guaranteed Investment Certificates or Bonds for you;
  • dealing with any legal and/or accounting matters;
  • selling real estate you own if you specifically give them that power;
  • keeping comprehensive and accurate records of all the transactions made on your behalf; and
  • passing on these records to the Personal Representative named in your Will after your death.

Are there some things that an Attorney cannot do?

An Attorney cannot:

  • change your Will or make a new Will for you;
  • change or make a new Enduring Power of Attorney for you;
  • change your designation of beneficiary on your RRSPs, pensions or life insurance policies;
  • make decisions about your health care or personal matters.

Attorneys just follow the rules about financial investments in the Alberta Trustees Act. This Act sets out rules about the kinds of investments that trustees can make on behalf of someone else. For more information, consult the Act or a lawyer.

How does my 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 upon being 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 specific event, which may include but is not limited to the mental incapacity or infirmity of the Donor.

A Declaration of Incapacity document must be signed for the second kind of Enduring Power of Attorney to come into effect. 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’ offices.

Your Attorney cannot make decisions about your health care or personal matters.

Your Enduring Power of Attorney should state who must sign the Declaration of Incapacity. You can name your Attorney to be the person who makes this decision. A Declaration will be regarded as conclusive evidence that you have lost mental capacity. If an Enduring Power of Attorney does not designate who is to make the Declaration, then two medical practitioners must complete the form.

Should I require my Attorney to report to me?

Your Attorney is required to provide you with a full accounting whenever you ask for one but, if you wish, you can include a requirement that she or he must provide an accounting at set intervals.

Or, you could require that your Attorney give an accounting to someone else that you name, such as a family member, a financial advisor or the person who acts as your Agent under your Personal Directive.

Should I include a provision stating that my Attorney is required to keep my financial information confidential?

Your Attorney needs to disclose enough information to carry out his or her duties and to abide by the law.

In terms of any additional information, your privacy must be respected unless you specifically authorize your Attorney to disclose information in your Enduring Power of Attorney. For example, you might state that you wish a list of family members to be kept informed of the financial decisions your Attorney makes.

Your Attorney is required to provide you with a full accounting whenever you ask for one.

Should I include a provision for my Attorney to be paid?

It is up to you. Often, an Attorney does not accept a fee if the Attorney is a spouse, adult interdependent partner, family member or close friend. You may state in your Enduring Power of Attorney that you would like your Attorney to be paid and reimbursed for out-of-pocket expenses such as parking fees and photocopying costs. If you set an amount, that is the maximum payment that your Attorney can receive.

If your Enduring Power of Attorney does not mention payment, your Attorney can apply to the court for “fair and reasonable” compensation. Co-Attorneys will split the compensation, but not necessarily equally. It will depend on who does most of the work.

You may wish to discuss this with your Attorney in advance.

Is there anything else that I should consider including in my Enduring Power of Attorney?

You should consider the nature of the property that will be administered: is it simple banking and bill payments, or are there complications like investments or rental properties?

For example,

  • If you have property or a business in the United States: you may wish/require your Attorney to consult with a tax lawyer with respect to any dealings with that property.
  • If you have a piece of property such as a valuable piece of jewellery that you have left to a treasured friend in your Will, you may want a clause in your Power of Attorney saying that the jewellery cannot be sold.
You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. December 2016
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