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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic will discuss the Power of Attorney.
A Power of Attorney gives someone authority to handle your financial and estate matters. It is a written document that says someone else, your agent, can step into your shoes and act with the same authority as you have in looking after your finances and estate. You may want to have an agent look after your affairs when you leave the country every winter for a warmer climate or when you become ill. You may give your agent general powers to act with very few restrictions. Or, you may give your agent special powers to act for a specific purpose only.
If you give your agent general powers of attorney, then your agent can step into your shoes and conduct your affairs with very few restrictions. For example, if you want someone to run all your financial affairs such as selling your house, administering your bank accounts, stocks and other investments, paying your bills and so forth, then a general power of attorney is required. You cannot give your agent powers that you do not have yourself. If you want your agent to act for one specific purpose, you should execute a special power of attorney. For example, you may want to give your agent authority only to sell your house.
Your agent must treat all information concerning your financial and estate matters in confidence. Your agent must always act in your best interests. Both you and your agent must be at least 18 years of age. Your agent must have full mental capacity and understand the role, responsibilities and consequences of being your agent under the power of attorney.
As long as your agent acts according to your instructions, you are bound by your agent’s decisions and actions. For example, if you give your agent a power of attorney to sell your car and the agent succeeds in selling it, you must give possession of the car to the buyer. However, if your agent acts beyond his authority under the power of attorney, then you are not bound by such actions.
You may purchase the documents for a power of attorney from a stationery store, or you may have your lawyer draft the document. You must sign the power of attorney in the presence of a witness.
Your agent cannot be a witness in your document. The witness must sign an Affidavit of Execution before a Notary Public or Commissioner for Oaths, confirming on oath that you appeared to understand the power of attorney you were giving, that the witness personally knew you and that the witness was present when you signed the document.
Your power of attorney will end in one of three ways:
- You tell or write a notice to your agent that the power of attorney is revoked;
- when you lose your mental capacity, unless your power of attorney is an “Enduring Power of Attorney” made in accordance with the Power of Attorney Act in Alberta; or
- When you die.
If you wish your agent’s authority under the power of attorney to continue after you have lost your mental capacity to make decisions, you should give your agent an Enduring Power of Attorney. An Enduring Power of Attorney must be signed and executed in the same manner a power of attorney is signed and executed.
If you have not executed an Enduring Power of Attorney to survive your mental incapacity, your agent or anyone concerned for your welfare may apply to the Court of Queen’s Bench for an Order under the Dependent Adults Act to appoint a trustee to handle your financial and estate matters. Before granting a Trusteeship Order, the Court must be satisfied that you are mentally incompetent, that you need a trustee, and that the proposed trustee is a suitable person to be appointed as your trustee.
If you are a third party dealing with an agent, you should carefully inspect the power of attorney and be sure you know the limits of the agent’s authority. If a person does not have a power of attorney but says he does, you may sue this unauthorized agent for damages if you had relied on his statement and suffered loss as a result. For example, you planned to start a small courier business and you made arrangements to purchase a van from someone claiming to have a power of attorney to sell that van. If you incurred any loss from that transaction and you later discovered that the person had no authority to sell you the car, you have a right to sue that unauthorized agent for damages.