Enduring Power of Attorney

Calgary Enduring Power of Attorney Lawyer

An “Enduring Power of Attorney” is a legal document that gives a person authority to sign legal documents on your behalf. Financial documents. It is a formal, legal document. It is best prepared by a lawyer.  It has to be witnessed. You can put conditions and specifications into the enduring power of attorney.

With a normal power of attorney you give the person authority to sign legal documents for you right now, possibly for a limited time period.  With a normal power of attorney this authority would expire upon your losing mental capacity.  However, if it is worded properly, an enduring power of attorney can continue in force even if you later lose your mental capacity.  Talk to a lawyer.

Springing Power of Attorney

With a springing power of attorney, you are giving someone authority to sign documents not right now – but in the future, and then only if you have lost your mental capacity and are unable to run your own financial affairs. This is what a springing, enduring power of attorney does. It only comes into effect upon your becoming incapacitated whether by accident or illness.

Section 2(1) of the Power of Attorney Act states that:

2(1)  A power of attorney is an enduring power of attorney if it contains a statement indicating that it either

(A)    is to continue notwithstanding any mental incapacity or infirmity of the donor that occurs after the execution of the power of attorney, or

(B)    is to take effect on the mental incapacity or infirmity of the donor.

If you become incapacitated and there is no enduring power of attorney in place, then your family might have to make an application to the Court of Queen’s Bench of Alberta in order to gain the legal authority to take over your financial affairs. This is  expensive, disruptive and time consuming.  Having an enduring power of attorney is much preferable.

It is normal to sign an enduring power of attorney at the same time you make your will, although there is no requirement that they be done at the same time.  They can be done at different times.  Your wills and estates lawyer will help you with this aspect of estate planning as well.

Powers of Attorney – The Law in Alberta

The law regarding the enduring power of attorney in Alberta is set out in the Power of Attorney Act, other legislation and the common law. To provide an idea of what is in the legislation, here is a copy of the table of contents to the actual Power of Attorney Act.

Power of Attorney Act

Table of Contents

1 Definitions
2 Enduring power of attorney
3 Incapacity at execution
4 Effect of subsequent incapacity
5 Coming into effect
6 Release of confidential information
7 Authority of attorney
7.1 Application of Trustee Act
8 Duty to act
9 Application to Court for advice
10 Accounting
11 Termination order
12 Renunciation
13 Termination of enduring power of attorney
14 Exercise of power after termination
15 Report for the Court
16 Exception re service

The use of the power of attorney is a real responsibility.  It requires adequate thought and understanding before deciding to get one.  And it requires proper preparation, wording and execution once it is decided to proceed.  As part of a proper estate plan a power of attorney is highly recommended, along with a personal directive and a will.

If you have questions about the different types of powers of attorney, or any estate matters, call today.

Over 30 years of experience as a Calgary estate and probate and power of attorney lawyer.

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