The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic will discuss an Enduring Power of Attorney.
An Enduring Power of Attorney should be prepared ahead of time before you suffer mental incapacity or illness which renders you unable to make sound decisions about your money and business matters. By an Enduring Power of Attorney, you appoint someone you trust to make decisions for you at a future time when you no longer have the capacity to make your own decisions. You could become unable to make your own decisions because of a brain injury, Alzheimer’s or other cause. Your condition could be temporary or permanent.
The person you appoint an Enduring Power of Attorney is called an “Attorney”. Here the word “Attorney” does not mean a lawyer. It means a person who decides or does things for you. No person, not even your spouse, daughter or son has the legal right to decide for you about your money matters or business matters for you, unless you appoint that person by an Enduring Power of Attorney. If you don’t have an Enduring Power of Attorney, the Court may appoint a trustee under the Dependent Adult Act to make decisions for you on your financial affairs.
You may wish to choose someone locally whom you trust to decide things the way you want them decided. You may appoint the same person for both your agent in your Personal Directive for your personal matters and your attorney in your Enduring Power of Attorney. Before you appoint any person as your agent or attorney, get that person’s consent to act for you. Discuss with that person any special wishes or intentions you may have about your personal matters or your money or business matters. Your wishes and intentions may be written down in your Personal Directive or Enduring Power of Attorney.
You may appoint more than one person as your attorney. You should also consider appointing another person as your alternate attorney in case your first chosen person for any reason is unable or unwilling to act. Your power of attorney will terminate upon the death of your appointed attorney.
There is no special form for an Enduring Power of Attorney. It can be handwritten or typed. You may begin the document by saying: “This is an Enduring Power of Attorney under the Power of Attorney Act”. It is a good idea to hire a lawyer to prepare these legal documents for you. Under the Act, there are certain formalities required for your Enduring Power of Attorney to be valid:
- It is in writing
- It is dated
- It is signed at the end of the document by you and one witness in the presence of each other, and the witness must not be your spouse, your Agent or the spouse of your Agent.
You must say when you want your Enduring Power of Attorney to take effect. You can have the Enduring Power of Attorney take effect upon the happening of a certain situation or immediately. You have a choice:
- Either you can say that it takes effect when a doctor certifies that you are unable to make business or financial decisions; or
- If you don’t want to be bothered any more about looking after your own money or business matters, you can say that it takes effect right away. This Power of Attorney is effective immediately.
You should be sure to say that your Enduring Power of Attorney stays in effect whenever a doctor has certified that you are unable to make decisions in business or money matters.
It may be a good idea to say in your Enduring Power of Attorney that your Attorney or Attorneys must give up-to-date reports to another person whom you trust and to put that person’s name in your Enduring Power of Attorney.
You can cancel your Enduring Power of Attorney at any time while your mind is clear enough to do so. You can cancel it by writing across the document that it is cancelled and signing your name. Or, you can just tear it in two. You should be absolutely sure to tell everyone who has a copy of your Enduring Power of Attorney that it is cancelled.
You can obtain a publication titled “Enduring Power of Attorney” from the Office of the Public Trustee if you wish to know more about this subject. The telephone number is 403-297-6541 for its Calgary Office and 780-427-2744 for its Edmonton Office. Outside these cities go through the government RITE Line at 310-0000.