How do I make an Enduring Power of Attorney?

How do I make an Enduring Power of Attorney?

Common questions about creating an Enduring Power of Attorney

Who can make an Enduring Power of Attorney?

In Alberta, to make a valid Enduring Power of Attorney you must be at least 18 years old and you must, at the time of signing, understand the nature and effect of the document.

How do I make an Enduring Power of Attorney?

In Alberta, an Enduring Power of Attorney must be in writing, and must be dated and signed by both you (the Donor) and a witness, in the presence of each other.
If you are physically unable to sign, your EPA may be signed by another person on your behalf – but that person cannot be the Attorney being named, or the spouse or adult interdependent partner of the person being named as the Attorney.  In addition, in order for the document to be an Enduring Power of Attorney, it must indicate that it is either to continue, or spring into effect, when the Donor’s loses mental capacity.

In Alberta, an Enduring Power of Attorney must be in writing, and must be dated and signed by both you (the Donor) and a witness, in the presence of each other.

Do I have to use a lawyer to prepare my Enduring Power of Attorney?

You are not required to use a lawyer’s services, but you may wish to consider this, especially if your affairs are complicated. Also, if you anticipate that someone may challenge your Enduring Power of Attorney by saying, for example, that you were not mentally capable when you signed it, it would be advisable to consult with a lawyer. And, although the person to whom you are giving authority is called an “Attorney”, your attorney does not need to be a lawyer.

Although the person to whom you are giving authority is called an “Attorney”, your Attorney does not need to be a lawyer.

What does it cost to prepare an Enduring Power of Attorney?

If you choose to make an Enduring Power of Attorney yourself, your costs will be limited to the price of a guide and pre-printed form that you can obtain at a registry office, stationery store or online legal forms site. If you decide to do this, be sure to read the document and instructions very carefully. If you choose to use a lawyer, the cost will vary and may depend on the complexity of your financial situation. It may be higher if your lawyer has to use his or her expertise in complicated tax-planning measures, the creation of trusts, or to deal with very large financial holdings.

Often, lawyers will quote a single price for a package of Enduring Powers of Attorney, Personal Directives and Wills, either for one person or for spouses if they make them at the same time.

What level of mental capacity is needed to make an Enduring Power of Attorney and who decides if I have that capacity?

The term “mental capacity” means different things for different types of decisions and actions. In general, however, it means a person’s ability to understand information that is relevant to making a decision and the ability to appreciate the reasonably foreseeable consequences of making or choosing not to make a decision.

For making an Enduring Power of Attorney, having mental capacity means that you:

  • know what property you have and its approximate value;
  • are aware of your obligations to the people who depend on you financially;
  • know what you are giving your Attorney the authority to do;
  • know that your Attorney is required to account for the decisions he or she makes about your financial affairs;
  • know that, as long as you are mentally capable, you can revoke (cancel) your Enduring Power of Attorney;
  • understand that if your Attorney does not manage your property well, its value may decrease; and
  • understand that there is always a chance that your Attorney could misuse his or her authority.

If you are worried that someone might challenge your mental capacity, it would be wise to have a lawyer make your Enduring Power of Attorney. You could also ask your doctor for a letter stating that you are mentally capable.

Even if you take these steps, it is always possible for someone to ask a judge to terminate your EPA, and a judge may do so if he or she considers it to be in your best interests.

If you are worried that someone might challenge your mental capacity, it  would be wise to have a lawyer make your Enduring Power of Attorney.

Can anyone be a witness to my Power of Attorney? What are my witnesses’ responsibilities?

Anyone who is 18 years of age or older and is mentally competent may witness your Power of Attorney. You and your witness must be present together and see each other sign the document. Witnesses must act in good faith and should refuse to witness an Enduring Power of Attorney if they have reason to question the mental capacity of the person who is making it.

Some people cannot act as witnesses:

  • anyone under the age of 18;
  • anyone who is mentally incapacitated;
  • the person being named as the Attorney;
  • the spouse or adult interdependent partner of the person being named as the Attorney;
  • the spouse or adult interdependent partner of the Donor;
  • a person who signed the Power of Attorney on behalf of the Donor; and
  • the spouse or adult interdependent partner of the person who signed the Power of Attorney on behalf of the Donor.

Witnesses must act in good faith and should refuse to witness an Enduring Power of Attorney if they have reason to question the mental capacity of the person who is making it.

If an Enduring Power of Attorney is not witnessed properly, it will be invalid.
You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. December 2016.
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