Will - Updating Will - Invalid or No Will - Power of Attorney - Personal Directive
Implications of No Power of Attorney
Legally protect your financial and property interests while still alive, yet incapable of acting for yourself due to personal incapacity.
To schedule an appointment, contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com
Without a power of attorney for finances, should you become incapacitated (or otherwise incapable of managing your personal finances), your loved ones will have to petition the Court to appointed the trustee over your finances, which is time-consuming and costly process. In Alberta, becoming a court-appointed trustee for someone who did not establish a power of attorney for finances is an intensive legal undertaking governed by the Adult Guardianship and Trusteeship Act (Alberta). The process begins with a formal capacity assessment, which must be performed by a physician, psychologist, or designated capacity assessor to prove the adult is truly incapable of making financial decisions. This assessment is time-sensitive and must be completed within six months of filing your application with the Court. Without this clinical proof of incapacity, the Court will not consider the application, as stripping an individual of their financial autonomy is considered a measure of last resort. Furthermore, if your personal situation is urgent, the applicant may need to apply for an interim order, which adds another layer of immediate legal work to the process.
Once the capacity assessment is secured, the applicant must complete a comprehensive application package that requires significant administrative effort and personal disclosure. The applicant is required to submit a detailed trusteeship plan outlining exactly how they intend to manage your income, assets, and liabilities, as well as a full inventory of your current estate. Furthermore, to prove the applicant's own suitability as a fiduciary, they must undergo a criminal record check, a credit check, and provide personal references that the Office of the Public Guardian and Trustee will verify. This stage of the process often involves gathering years of financial history, bank statements, and property valuations to ensure the court has a transparent view of the adult's net worth. The sheer volume of paperwork often leads many Albertans to hire a lawyer, which increases the financial "work" or burden of the application.
After the application is submitted, there is a significant waiting period and a series of procedural steps that can take anywhere from three to twelve months. If there is no family conflict, the applicant may proceed via a Desk Application where a judge reviews the file in chambers, but if any interested party objects, the applicant must prepare for a formal court hearing. During this time, a Review Officer from the Office of the Public Guardian and Trustee will often interview the applicant and other family members to ensure that the proposed trusteeship is in the incapacitated person's best interest. The applicant is also legally required to serve notice of the application to all immediate family members, which can be an emotionally taxing task if there are strained relationships or disagreements regarding who should be in control. The Court may also appoint an independent lawyer for the incapacitated person to ensure their rights are protected, adding further complexity to the proceedings.
The work does not end once the Court Order is granted; in fact, the most persistent labour begins after the applicant is appointed as the trustee. As the trustee, they are legally obligated to keep the incapacitated person’s finances strictly separate from their own and must maintain meticulous records of every single penny earned or spent on their behalf. The Court will typically require the trustee to submit their accounts for Examination and Approval every few years, a process that involves a formal audit by the Court or the Office of the Public Guardian and Trustee to ensure no mismanagement has occurred. The trustee must also adhere to the Prudent Investor rule, meaning the trustee can be held personally liable if they fail to manage the incapacitated person's investments with the care a reasonable person would use for their own money. This ongoing fiduciary duty tends to represent a long-term commitment of several hours a month to ensure compliance with strict reporting and accounting standards that are imposed on Court-appointed trustees.
As is evident from this brief overview, having a valid power of attorney for finances enacted prior to your becoming incapacitated or otherwise incapable of managing your personal finances is highly preferable to the arduous (and costly process) of having the Court appoint a family member as your trustee for finances. So, whether you are looking to have a power of attorney for finance created or require legal representation in the implementation of an incapacitated person’s power of attorney, contact our law firm today at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.
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