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Power of Attorney FAQs (Frequently-Asked Questions)
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What is a Power of Attorney?
In Alberta, a Power of Attorney is a legal document that grants a person (the "attorney") the authority to manage your financial and legal affairs while you are still alive. Under the Powers of Attorney Act, this can be drafted as an "enduring" document, allowing your designated attorney to continue acting on your behalf if you become mentally incapacitated.
What is an "Enduring" Power of Attorney versus a "Non-Enduring" Power of Attorney?
An enduring power of attorney contains a specific clause stating the authority continues ("endures") or begins despite the donor’s subsequent mental incapacity. A non-enduring power of attorney is generally for a specific period or task and becomes legally void the moment the donor loses mental capacity.
What is the legal difference between an "Attorney" and an "Executor"?
An attorney manages your financial affairs while you are still alive; an executor’s authority only begins upon your death. Once a donor passes away, the Power of Attorney immediately ceases to have any legal effect, and the Will governs the estate.
What is the "test for capacity" to create an enduring power of attorney in Alberta?
The donor must understand the nature and effect of the document, including the extent of their property and the powers they are granting. Under Alberta law, this capacity is presumed unless there are reasonable grounds to believe the donor does not understand these core elements.
Are there specific witnessing rules that can invalidate a Power of Attorney?
In Alberta, the document must be signed by the donor in the presence of a witness, who must then sign in the donor’s presence. The witness cannot be the person named as the attorney, the attorney’s spouse / adult interdependent partner, or the donor’s spouse / adult interdependent partner.
Does a Power of Attorney for Property need to be registered with the government?
There is no central registry for powers of attorney in Alberta; the original document should be kept in a safe, accessible place. However, if the attorney needs to sell or mortgage real estate, the power of attorney must be filed with the Alberta Land Titles Office.
Can a "General" Power of Attorney be limited to a specific task or time frame?
Yes, you can draft a "Special" or "Limited" Power of Attorney that restricts the attorney's power to a single transaction, such as closing a specific real estate deal. These are common for individuals who are travelling or temporarily unavailable but remain mentally capable.
Who is eligible to be an attorney for property in Alberta?
An attorney must be 18 years of age or older and mentally capable at the time of appointment. While Alberta law doesn't strictly bar those with poor credit or criminal records, the donor should consider these factors as the attorney is held to a high fiduciary standard.
Can an attorney for property make gifts or loans from the donor’s money?
An attorney can only make gifts or loans if the power of attorney explicitly authorizes it or if it is necessary to provide for the donor’s beneficiaries. Without specific written instructions, the attorney is generally restricted to using the money solely for the donor's benefit and maintenance.
What are the record-keeping obligations of an attorney for property?
Attorneys are legally required to keep a complete and accurate set of accounts and records for all transactions made on the donor's behalf. Interested parties, such as family members or the Public Trustee, can apply to the Court to compel the attorney to provide a formal accounting.
When does a Power of Attorney for Property commence?
An enduring power of attorney can be "immediate," starting the moment it is signed, or "springing," meaning it only takes effect upon a specific event like mental incapacity. If it is a "springing" enduring power of attorney, it usually requires a written declaration of incapacity from a designated person or a physician.
What happens if a bank refuses to recognize a validly executed Power of Attorney?
Banks may be hesitant if the document is old or doesn't match their internal forms, but they cannot legally ignore a validly executed enduring power of attorney under the Powers of Attorney Act. If a bank refuses, a lawyer can provide an opinion letter or, as a last resort, a Court Order can be sought to enforce the attorney's authority.
How can a Power of Attorney be cancelled (revoked)?
As long as the donor is still mentally capable, they can revoke a Power of Attorney at any time by signing a written "Revocation." This notice must be delivered to the attorney and any relevant financial institutions to ensure the previous authority is no longer recognized.
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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