Enduring power of attorney | How it works
Choose someone you trust to make financial decisions for you while you are alive.
What’s important to know
Planning ahead is the smart thing to do. Every Albertan who is 18 years of age or older should have:
You write an enduring power of attorney at a time when you are capable of making your own decisions.
It’s a legal document that lets you choose someone, usually a family member or trusted friend, to make financial decisions for you. This person is called your attorney. Although this word is often used to describe a lawyer, it has a different meaning here.
Depending on how your enduring power of attorney is written, there are two options:
- Your attorney starts making decisions immediately. You and your attorney have control over the money – you can both write cheques, sign documents, etc. If, in the future, you can’t make decisions because you are ill or injured, your attorney takes over – they make the decisions.
- Your attorney doesn’t make financial decisions for you until, sometime in the future, you can’t make decisions because you are ill or injured. This arrangement is sometimes called a springing power of attorney because it springs into effect when you become incapable. If you get better, you can take back the power to make your own decisions.
The money is still yours and your attorney has to keep clear records of financial transactions.
Is this the same as an immediate power of attorney?
An immediate power of attorney is different. People who travel extensively or who have mobility problems often use it.
Both you and your attorney have control over the money – both of you can write cheques, sign documents, etc.
It takes effect as soon as the document is signed.
Depending on how it’s written, it either stops on a specific date or it stops when you are can’t make your own decisions anymore.
What kinds of decisions can an attorney make?
Attorneys make decisions about financial matters. They can:
- sign cheques on your account
- manage your investments
- sell real estate
- apply for financial benefits for you, such as Old Age Security
They don’t make personal decisions, like medical treatment, where you live, etc. For that, you need a personal directive.
What’s an example of when an enduring power of attorney is used?
If you wrote an enduring power of attorney and later developed dementia, your attorney could write cheques from your account to ensure your bills are paid. If you moved to a care facility, it might be appropriate for them to sell your property.
Why write an enduring power of attorney?
Many people think that if they can’t make decisions for themselves, their family can do it. This isn’t necessarily true.
If you have an accident or become ill, you may not legally be able to make decisions.
Without an enduring power of attorney, a friend or family member may have to apply to the court to become your trustee, which takes time and money. Also, the court could select someone you might not have chosen.
By preparing an enduring power of attorney now, you can make sure that your property and your finances will be managed by someone you trust.
How long does it take?
When you and your witness sign your power of attorney, it becomes a legal document.
Is there a form?
There is no standard form. Your lawyer will have their own version.
This publication offers useful background information:
Making a Power of Attorney in Alberta (PDF, 138.9 KB)
Is there a cost?
It’s a good idea to have a lawyer write your enduring power of attorney. You can expect to pay for their services.
Some people want a financial institution (e.g. a bank) as their attorney, rather than an individual. There is a fee to do this job.
How is capacity assessed?
When you lose the capacity to make decisions, it must be confirmed with an assessment.
In general, a capacity assessment looks at whether you can understand:
- the facts you should consider when making a decision
- what could happen if you choose one option over another
That means, for example, that you know what property you have and approximately how much it’s worth. You’re also aware of your financial obligations to other people who depend on you.
Just because someone disagrees with a decision you make, it doesn’t mean you have lost the ability to make your own decisions. If you fully understand the impact of a decision, you’re probably capable of making it.
For example, if you fully understand how an investment will affect your finances and what will happen if you lose the money, you are probably capable of making this decision yourself.
Who decides whether you are incapable of making your own decisions?
Usually you name someone in your enduring power of attorney to determine whether you can make your own decisions, such as your family doctor.
If you don’t name someone or if the person you chose is not available, 2 medical practitioners make the decision.
They sign a Declaration of Incapacity form. There isn’t one official form. Hospitals, doctors and care facilities may have their own form.