Enduring Power of Attorney (EPA): What it is & How to Get One

Preparing for the possibility of not being able to act independently is uncomfortable but necessary.

You may not be thinking about what will happen to your finances and other personal matters when you can no longer make decisions for yourself. However, it is essential that you take the time now to appoint someone who can act on your behalf in these circumstances.

This is where enduring power of attorney comes in.  The Enduring Power of Attorney (EPA) gives a person you appoint power over such things as property, investments, and bank accounts.

This article will explain what an Enduring power of attorney is, how it works, and why you should get it to decide whether this is something that needs doing sooner rather than later.

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What is Power of Attorney (POA)?

A power of attorney is a legal document that enables an individual to have somebody else (known as the “attorney”) deal with their financial and legal affairs if they can no longer do so themselves.

When you sign a power of attorney, you need to be mentally capable to make that decision. If not, the power of attorney will not be valid. Mental capability is the ability to appreciate financial and legal decisions and understand their consequences.

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How to Get Power of Attorney (POA)

The first thing you’ll do is select someone you trust as your power of attorney and identify what type of wishes they are executing on your behalf.

For instance, you could establish a POA that only takes effect when you can no longer handle your affairs on your own—or one that goes into effect immediately so your agent will be able to act in your absence.

Powers of attorney are not unlimited. For instance, the power may only be granted to represent you at a real estate closing in another city. Additionally, even when no limiting language is added to a general power of attorney, it usually only operates while the person granting the authority (called “the principal”) has total capacity.

If you own real estate solely in your name, your spouse would need to have the power of attorney before they can take any legal or financial actions related to it, such as selling it.

Anyone can set up an easy POA with these three (3) methods: 

1. The easiest way to prepare a power of attorney document is to use an online service. They allow you to put together your POA with built-in templates and then have it reviewed by an independent lawyer to ensure it is legal and practical.

2. You can also purchase a customized power of attorney kit, including all the forms needed and detailed instructions for completing them.

3. Another way is to hire a lawyer to draft a legal power of attorney, usually for an hourly or flat rate fee.

Ensure that the agent you choose has no direct or indirect interest in any of your property, money, or other assets before you give them power of attorney.

To set up a legally binding power of attorney, the principal must have the intellectual capacity to create the document. This means that they are fully aware of what is happening and how it will affect them. That is why if, for instance, you have an ill parent who is already incapacitated, you can not get a power of attorney to act on behalf.

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General vs Enduring Power of Attorney

Generally, there are two (2) major types of powers of attorney commonly used in Canada for finances and property:

1. General power of attorney: A general power of attorney automatically ends when the grantor becomes mentally incapable.

2. Enduring power of attorney: An enduring power of attorney will still be in effect if the grantor can handle their affairs or if the grantor has become incapacitated but not died.

For the remainder of this article, we will be discussing the enduring power of attorney.

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What is Enduring Power of Attorney (EPA)?

An enduring power of attorney is a legal document that allows you appoint someone you trust to assist you with your property and financial affairs. They don’t cover welfare and health decisions. Unlike a general POA that ends when the individual becomes mentally incapable, enduring power of attorney’s authority continues irrespective of the adult’s incapability.

To be considered valid, enduring power of attorney must always be written to include the clause ‘An authority persists even if I become incapacitated’. It should state whether the person granted will have access until the other becomes incapable OR only while they are indeed disabled.

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How to Make an Enduring Power of Attorney?

There is no unique form that you need to fill out for an Enduring Power of Attorney. You can type it or handwrite it.  You may start the document by saying: “This is an Enduring Power of Attorney under the Power of Attorney Act.” 

Under the Act, there are specific formalities needed for your Enduring Power of Attorney to be valid:

1. It is dated
2. It is in writing
3. Sign the document with another witness present. Your witness can not use your spouse, agent, or spouse’s agent.

Hiring a lawyer to prepare these documents will reduce the risk that you could accidentally violate one of them.

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When Does the Enduring Power of Attorney Begin?

The enduring power of attorney can be made effective immediately upon signing, or it may take effect only if and when the grantor becomes incapacitated. You can choose when you would like your enduring power of attorney to start. 

Suppose your enduring POA begins after you become unable to handle your affairs. In that case, it must either go into effect at that time or specify a particular date when it goes into effect. 

If you lose your mental capability without having an enduring power of attorney, a close person can petition the court to become a trustee and take over your affairs.

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When Does an Enduring Power of Attorney End?

An enduring power of attorney can end in any of these ways:

• The donor might change their mind and cancel or change the enduring power of attorney. To do this, the donor must be mentally capable;
• If the donor dies;
• If the attorney quits or passes away;
• A court determines the POA is no longer valid; and
• If the donor recovers mental function and can take care of their affairs.

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Enduring Power Of Attorney in Alberta

As with all enduring powers of attorney, enduring power of attorney Alberta gives someone you trust the power to make financial decisions for you in the event that you are medically incapable. These decisions include anything related to property and finance like paying your bills, managing any investments, maintaining your property, or collecting any debts owed to you.

Every Albertan who is at least 18 years old should have:
+ a personal directive
+ an enduring power of attorney
+ a Will

Source: Government of Alberta

Why Should Alberta Residents Make an Enduring Power of Attorney?

While Alberta residents are not legally required to make an enduring POA, it is always a good idea for all individuals with assets. If you become medically incapable without having made one, your loved ones must go through the court system to gain authority over your financial and legal matters. At that point, there may be thousands of dollars in debt and outstanding bills that need to be paid.

Your enduring POA makes sure that your finances and property are in the hands of someone you trust. It gives you more peace of mind knowing that, should anything happen with your health or ability to manage tasks on your own, your attorney will be able to handle all financial matters and property management issues. You won’t even miss any bill payments.

You can regard your enduring power of attorney as some sort of disability insurance. You hope it never has to be used, but if you’re unable to make decisions in an emergency, this document will offer protection!

Incapacitation can be a result of accidents or emergencies. With a power of attorney, your lawyer will have permission to act on your behalf while you can’t.

Do You Need A Lawyer To Make An Enduring Power of Attorney Alberta?

No, you don’t need a lawyer to make an enduring power of attorney Alberta. However, there are a few requirements. In Alberta, these are the requirements:

• You should be of sound mind and eighteen years of age or older.
• Your document must be printed and stored as a physical file (you currently cannot store it online).
• Sign your document with two valid witnesses present. These witnesses will also sign to verify they witnessed you signing.
• Signatures in ink must be provided at the very end of the document following any witnesses.

How to Make a Power of Attorney Alberta?

There are many simple ways to make your enduring power of attorney in Alberta.

• Online power of attorney platforms – These are simple to use online websites where you fill in the details, and once you pay, they print it for you. Your final document could include instructions detailing the requirements for witnessing and notarizing to ensure that your document is legal in Alberta.

• Hiring a lawyer – You may want to hire a lawyer if you have complex wishes or need legal advice. A lawyer can design a document that reflects any complex requests you might have. They will charge a fee, but a customized POA from a lawyer is usually faster.

• Fill-in-the-blank power of attorney forms – You may find these forms at a stationery store or post office. They are usually cheaper than hiring a lawyer, but they are generic and only account for one way of filling out a document. You may find that you cannot describe your wishes in the limited options offered. If you choose to fill out a form, make sure it’s meeting your needs and is compliant with Alberta laws.

These options will generate documents that you must keep in a physical file and not digital ones! If you really want to keep everything safe, then print out PDF copies and store them in a safe place. Your POA-Alberta does not have to be notarized to be deemed legal. Just ensure you follow the guidelines for witnessing and signing.

What Is the Difference between Enduring Power of Attorney and Personal Directive in Alberta?

An enduring POA and a personal directive work hand-in-hand. The personal directive, also known as an advance care plan, is often filled out at the time of your initial appointment with your lawyer for the POA. In this document, you can make a list of specific instructions related to your personal care on what you would like to have done for you if you cannot communicate it yourself. This can include health care, meals, housing, clothing.

The personal directive is a bit more general and allows your attorney to take charge of some decisions for you based on your preferences, such as when to withdraw life support or withhold food and water from you. In Alberta, the person you assign this role in your directive is known as an agent.

On the other hand, enduring power of attorney covers anything related to your finances and legal matters.

Do Albertans Have Living Wills?

A living Will is a document that states your medical treatment wishes or how you wish to be cared for in the event of death. Alberta has no living wills. These wishes will be documented in your personal directive. Note that this is not the same as a last will and testament.

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Enduring Power of Attorney for British Columbia (BC) Residents

To make a power of attorney in BC, you must be an adult (that is, at least 19 years old) and be mentally capable. According to Section 11 of the Powers of Attorney Act, unless shown otherwise, adults are presumptively capable of managing their finances and understanding the nature of their actions, such as when they implement or revoke an enduring power of attorney.

An existing power of attorney form before the update, which was signed on September 1, 2011, will generally still be valid. It’s, however, still important for an attorney to review it.

Who Can be Appointed as an Attorney in B.C

According to B.C.’s Power of Attorney Act, you can ask another individual (such as your spouse, family members, close friend, or any trusted person), the Public Guardian and Trustee, a respected professional (e.g., notary, lawyer), a trusted company or an authorized financial institution to be your attorney.

You may have more than one attorney, but your attorney cannot be someone paid to provide you with health or personal care services, for example, an employee of a care facility that you live in. This can only be allowed if the person is your spouse, child, or parent.

The minimum legal age for an attorney in British Columbia is 19. If you appoint anyone under 19-years of age, they can not act as your attorney until they are an adult (aged 19+).

Witnessing Requirements for Enduring Power of Attorney in BC

 You must sign the EPA in the presence of two witnesses. You’ll only need one witness if the witness is a member of the Society of Notary Public of BC or a BC lawyer.

In addition, each attorney must also sign the EPA before they can act, and their signature must be witnessed. You and your attorney do not need to sign at the same time.

When does an Enduring Power of Attorney BC End? 

An Enduring Power of Attorney expires after death or if you cancel it. It also ends if the Supreme Court of British Columbia appoints an estate committee to manage your affairs or if the Public Guardian and Trustee takes over your financial and legal affairs.  

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Bottomline: Enduring Power of Attorney

As you can see, there are many benefits to having an enduring power of attorney. For Alberta residents, it is easy and affordable to create one by following the three steps we outlined in this post. Overall, the details provided in this article should help you determine whether or not creating an Enduring Power of Attorney for yourself, your spouse, parents, or other loved ones would be beneficial. 

Have you created one? What was the process like for you? Let us know! We’d love to hear how your experience went with making these decisions- it could make all the difference when we’re helping others decide on what’s best for them and their family members.

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