Practice Areas

Enduring Power of Attorney and Personal Directive Disputes

Enduring Power of Attorney and Personal Directive Disputes

What is Enduring Power of Attorney?

If you lost your cognitive abilities and were unable to manage your finances and property, what would happen next? Good estate planning includes preparing for the future, which is why all Albertans should create an Enduring Power of Attorney (EPA) when they are mentally competent.

The person, or people, you designate will be able to step in and make decisions on your behalf if you become mentally incapacitated through injury, age or illness. While this topic may be unpleasant for some, keep in mind that dementia rates are rising across Canada. For the sake of your loved ones, make this important decision now.

Why is it Important to Have an Enduring Power of Attorney?

The province of Alberta recommends that everyone 18 years or older have an EPA. If you do not and become mentally incapable, a family member or a friend will have to go to court to become your trustee, giving them the legal authority to manage your personal or financial affairs.

The person with the EPA (known as the attorney) has the same authority as the person (known as the donor) to make decisions concerning property as well as providing for children, spouses or people dependent on the donor.

How do you Change or End an Enduring Power of Attorney?

The financial oversight granted by an EPA ends when the donor dies, with any distribution of the estate dictated by their last Will and Testament. An EPA can be revoked by the donor but only if they have the mental capacity to make that decision. It can also be concluded if a court cancels it, a trusteeship order is granted, or if the attorney dies or loses capacity and there is no alternate attorney to take over.

If someone has complaints about how an attorney is performing their duties, Alberta’s Power of Attorney Act states that relevant financial records must be provided to the court to review.

You Must Be Mentally Capable when Creating the EPA

The document must be prepared when you are mentally capable, as you have to understand the legal authority it is granting to others. An EPA can begin at two different times:

  • right away and continue after you lose mental capacity; or
  • in the future, starting if and when you lose mental capacity.

If the EPA is to take effect when you lose capacity, the document should state who must make a written declaration that has occurred. Your family doctor may be a natural choice. Otherwise, two medical practitioners must make a written declaration that you are incapable of mentally handling your affairs.

More than one person may be designated to act as your EPA and you can set specific limits or dates on their power. Since there are no official forms for creating an EPA, the Alberta government strongly recommends residents work with a lawyer. That will ensure all your financial interests are protected and that the document is legal, protecting the interests of your loved ones at the worst of times.