What is a Power of Attorney in Alberta?
A Power of Attorney (POA) is a written document that gives another person (also known as an attorney) the authority to manage your financial affairs on your behalf. There are several reasons you may designate someone else to look after your finances. For example, it can be helpful to have another person take care of your finances while you are travelling or spending the winter in a warmer climate, or during a period of illness. You determine the how much control you want your attorney to have – from specific powers which are more limited to general powers which have minimal restrictions. In Alberta, you may select different types of Power of Attorney documents depending on your needs. If you want your attorney to handle your estate and financial matters in the unfortunate circumstance that you lose mental capacity, this requires a document known as an Enduring Power of Attorney (EPA). Whatever your needs are, an experienced Power of Attorney lawyer will be able to guide you through the process and ensure you avoid any pitfalls that could cost you down the road. Looking to write a Power of Attorney? Not sure who to select as your attorney? We can help. At Litwiniuk & Company, we understand that your needs are personal to you and we’re here to ensure your wishes are put first. Our Power of Attorney lawyers and legal assistants worry about the legal work and paperwork, so you don’t have to.
*An “attorney” in Canada is someone who you select to look after your personal, business, and financial affairs, and is usually a trusted friend or family member. Unlike in the United States, it is not another word for a lawyer.
*A “donor” is the person who gives Power of Attorney.
Special Power of Attorney (POA)
In Alberta, a ‘special’ Power of Attorney is a document that allows you to give another person the power to handle a specific task or transaction on your behalf or in your absence, such as a business transaction. The task could be minor, or something bigger, like entrusting your attorney with the sale of your property while you are away on vacation. Although the scope of a special attorney’s power is limited, it is still important that you can trust that person to carry out the task according your wishes and with your best interests at heart. Because this type of POA is limited in scope, it is especially important that the document very clearly states what powers you want the attorney to have. It is also possible to name more than one special attorney by naming different persons with different tasks in separate documents.
General Power of Attorney (POA)
If you give your attorney ‘general’ power, they can effectively step into your shoes and take over your financial affairs with very few restrictions. This may be a good option if you need someone to manage most or all your financial affairs, such as your bank accounts, bills, stocks and investments, property, and so on. Because there are very few limitations on the attorney’s power, you must absolutely trust this person. While the general attorney has a lot more power, the General Power of Attorney document does not allow him or her to pass the role onto another person, or make decisions for you if you lose mental capacity (which requires an Enduring Power of Attorney).
Enduring Power of Attorney (EPA)
An Enduring Power of Attorney is the least restrictive type of POA. Not only does it allow you to decide the scope of power that you give your attorney to manage your affairs, the attorney is also given more extensive power so they can take care of your finances and estate if you lose mental capacity. In Alberta, the laws require the Enduring Power of Attorney document to be written up in very specific language in order to be legally valid. If you have the EPA set up ahead of incapacity, then you will have a smooth transition that ensures your wishes are followed but, if you don’t, your family will need to hire a lawyer to apply to the Court of Queen’s Bench for an Order under the Adult Guardianship and Trusteeship Act to appoint a Trustee (for financial matters) of their choosing. The cost of appointing a Trustee is around 10 times the cost of setting up an Enduring Power of Attorney.
Important Rules for Creating a Power of Attorney in Alberta
A Power of Attorney is a legal document that must be written in accordance with the laws of Alberta’s Powers of Attorney Act which state that:
- Both you the ‘donor’ and the ‘attorney’ must be 18 years of age;
- The ‘attorney’ must be mentally capable and understand the responsibilities of the role;
- The Power of Attorney must be signed in the presence of a witness; and
- An attorney cannot be a witness.
The witness must sign an “Affidavit of Execution” before a Notary Public or Commissioner for Oaths confirming:
- their presence when the document was signed;
- that they personally know the donor signing the document;
the document was signed freely without coercion; and
- that the donor understands the document they are signing.
Last but not least, your attorney must keep any information about your finances and estate in confidence and act in your best interests. As long as your attorney acts in accordance with your instructions, you are legally bound by any actions or decisions they make on your behalf. For example, if you instruct your attorney to sell your home and they are successful, you cannot change your mind and attempt to go back on the sale. However, if your attorney acts beyond the scope of his or her power, you are not bound by those actions. The Power of Attorney is active until such time that:
- The POA is no longer needed;
- The attorney’s power is revoked;
- You lose mental capacity (unless you have an Enduring Power of Attorney); or
- You pass away (a Personal Representative (PR), usually named in your Will, is responsible for administering your estate after your death).
If you need help with Powers of Attorney, or if you have questions about how much it costs to set up a Special, General, or Enduring Power of Attorney in Alberta, call or email us for a free consultation.
Revoking a Power of Attorney (POA)
Life circumstances can change, and you may find down the road that you no longer need the services of an attorney, or perhaps you want to select someone else to act on your behalf. In either case, it is possible to revoke a POA in Alberta through a Revocation of Power of Attorney document which provides written legal confirmation that you are cancelling your attorney’s power. Following are just a few of the most common reasons a donor might revoke their Power of Attorney:
- The POA is no longer necessary;
- You would like to appoint another person to act as your attorney;
- You no longer trust the attorney you selected to act on your behalf;
- The attorney is no longer able to act in their role; or
- The purpose of the POA is fulfilled and there is no longer a need to have an attorney.
If you need help with revoking a Power of Attorney, or if you have questions about the necessary documents and legal process in Alberta, call or email us for a free consultation.
What are the advantages of a Power of Attorney (POA)?
- Having a Power of Attorney in place ensures that your finances are taken care of.
- Depending on your needs, this may be temporary or long-term.
- Your attorney is accountable by law to act in your best interest and explain how your finances are being managed.
- Your Power of Attorney can be as general or specific as your needs are (i.e. if you need a single document signed while you are on vacation or someone to manage your finances and estate for several years).
- You may select one or more attorneys and determine if you want them to act jointly or separately.
- We also recommend appointing an alternative attorney as a backup in the event that your acting attorney is unable or unwilling to continue in their role.
- Whether you plan to go on vacation for a few months and don’t want to be bothered with the hassle of paperwork or you are otherwise indisposed, a Power of Attorney can take the stress off your shoulders for as long as you need.
- An Enduring Power of Attorney ensures that your finances are taken care of in the unfortunate event that you lose mental capacity. It ensures that the person(s) of your choosing handle your affairs in accordance with your wishes. Without this document in place it falls to the courts to decide who should handle your financial affairs, which can be costly to your loved ones.
What are the risks of a Power of Attorney (POA)?
- If your attorney is not equipped to handle their role or does not have your best interests at heart, this could lead to the mismanagement of your money. For this reason, it’s important to carefully select a capable and trustworthy person as your attorney. A Power of Attorney lawyer can assist you in selecting the best candidate.
- A Power of Attorney that is too directive or not specific enough can be problematic. On one hand, a lack of information can put you at greater risk of your finances being mismanaged. On the other hand, if you set limitations which are too strict, this can negatively impact your attorney’s ability to make decisions on your behalf. Both scenarios can be avoided with careful planning and preparation of the Power of Attorney document. An experienced lawyer will be able to help you customize a Power of Attorney that is right for your needs.
- If you appoint more than one attorney to act jointly and they disagree on a financial matter, this could lead to problems and cause delays. You can reduce the chances of this problem occurring by clearly stating your wishes in your Power of Attorney, carefully selecting attorneys who can work together, and appointing a third-party individual who you trust as a mediator.
Why Choose to Create a Power of Attorney?
A Power of Attorney is a useful tool that can significantly ease your stress. Having this document in place allows someone else to sign off on paperwork, take care of your finances, and deal with general estate matters for you when you are busy or otherwise indisposed. You decide who you want to be responsible for this task, the extent of power they have, and the duration of the POA. A Power of Attorney lawyer will ensure that the document is customized to your needs and eliminate any risks that might arise from writing a POA that is unclear or incomplete.
Selecting an Attorney
The single most important consideration when selecting your Attorney is that person’s trustworthiness. For this reason, most people choose a trusted friend or family member. When you appoint an attorney, you grant this person significant power over important aspects of your life and it is paramount that they will act with your best interests at heart. You want to ensure you are entrusting that level of power to someone who will follow your wishes, understand what you need them to do, and be capable of the role. A good attorney is mature and organized, preferably with at least some basic financial knowledge. It is important that he or she has the expertise to properly handle your finances, be willing to act in the role, and understand what your expectations are. A Power of Attorney lawyer can assist you in selecting the best candidate and ensuring you and your attorney have all the facts about the role and responsibilities. If you have questions about writing a Power of Attorney, or selecting an attorney, call or email us today for a free consultation.
What to consider before creating a Power of Attorney (POA)
- It is important that you select an attorney who is trustworthy, capable, and willing to fulfill the role.
- You will also want to consider how much authority you want to give your attorney and what sort of limitations you may wish to include on their power.
- It is worth considering if you want to name one or more attorneys to handle your financial and estate matters.
- If you would like to appoint more than one attorney and you want them to act jointly, you may want to appoint another person as a mediator to resolve any disagreements that could arise if your attorneys cannot agree on certain matters related to your finances.
- You will also want to decide whether you would like to receive regular financial statements from your attorney or task another person to review these documents on your behalf to ensure that your finances are being properly managed.
- It is important to give some thought to who you might want to name as a substitute attorney if your acting attorney is no longer able or willing to fulfill their duties.
- Finally, it is important to understand the differences between General, Special, and Enduring Powers of Attorney. A Wills and Estates lawyer will be able to help you determine what type of POA is best suited to your needs.
What to consider once you have a Power of Attorney (POA)
- It is important to review the terms of your Power of Attorney regularly to ensure the document is up-to-date and continues to accurately reflect your wishes.
- You may change or cancel your Power of Attorney at any time (this includes changing or naming a new attorney), as long as you are mentally capable.
- You may continue to manage your financial affairs with a Power of Attorney in place, if you choose to do so.
- It is a good idea to speak with your attorney regularly to ensure you are both on the same page and that they understand your wishes.
- If you move out of the province or you are going away for a significant period of time, notify your lawyer of these changes to ensure your Power of Attorney is still valid.
- If you have any questions or concerns about how your affairs are being handled, talk to your lawyer. An attorney can be held responsible for their actions if they are not acting in accordance with the Power of Attorney document.
Joint Bank Accounts vs. Power of Attorney
In some cases, a joint bank account may seem like a simple alternative to a Power of Attorney and a convenient option if you want help managing your finances. In reality, they work very differently. A joint bank account essentially gives the other person carte blanche – in other words, complete freedom to do whatever they want with your money. It is very difficult to hold a joint bank account holder accountable for the mismanagement of your money and there are risks associated with not being able to set limitations to the other person’s power over your finances. A Power of Attorney allows you to carefully choose which accounts your attorney will have access to and limits what actions he or she can take with respect to your estate. There are also laws in place to hold your attorney accountable if they mismanage your finances. For more information on joint bank accounts and Power of Attorney, contact a knowledgeable Wills and Estates lawyer.
We Are Calgary’s Wills and Estates Lawyers
Creating a Power of Attorney can be complex and confusing. A knowledgeable Power of Attorney lawyer in can help you navigate the process and answer important questions such as, “Do I need a Power of Attorney?”, “What type of attorney is right for me?”, and address the questions you may not have thought of. Whether you already have a POA in place, are considering setting up a General, Special, or Enduring Power of Attorney, or you have questions about Alberta’s Wills and Estates laws, we can help. Our experienced Calgary Power of Attorney lawyers have been helping Albertans for over 40 years and we are here to give you peace of mind. We understand Power of Attorney laws inside and out, and we’re here to take care of the legal work and paperwork so you don’t have to worry. Our initial consultations are free, so it won’t cost you anything to find out if you need the help of a Power of Attorney lawyer. Call or email us today to speak to a lawyer and get all your questions answered.