Power of Attorney Lawyers in Calgary
If you have considered estate planning in Calgary, you may be familiar with the term “power of attorney”.
But do you know what powers can be granted to whom – or the different options available for creating these documents?
A power of attorney is an essential part of estate planning that authorizes another trusted individual to act on your behalf in financial matters. It provides the peace of mind that if you are unable to make decisions in the future, a trusted representative is ready to step in and manage your finances.
At Spectrum Family Law in Calgary, our team of power of attorney lawyers can help you create the documents that protect your own finances and health in the future, as well as the interests of loved ones after you pass away.
Learn More>> The Essential Guide to Estate Planning in Calgary
What types of power of attorneys are available in Alberta?
The basic purpose of any power of attorney (POA) document is to provide legal consent for another person (the “attorney”) to look after the financial affairs of a person (the “donor”) who is unable to make such decisions.
While most people equate these documents with the loss of mental capacity due to old age, they can also be created for someone unable to manage their financial affairs due to other reasons, such as travel, business, or physical illness.
Before drafting such a document, you should discuss with a power of attorney lawyer what you want it to achieve and how best to go about it. In Alberta, different power of attorney agreements grant different powers and some are broader in scope than others.
The three main types of POAs are:
If you need someone to act on your behalf for a specific financial transaction, such as buying or selling a business, you can set up a specific POA.
The permitted actions of the attorney are restricted to just those detailed in the document.
A general power of attorney allows you to appoint a trusted person (or group of people) to act on your behalf in financial matters and any matters involving your assets.
You may limit the scope of a general POA by time if necessary but most are indefinite.
An enduring POA provides for a nominated individual to act on your behalf if and when you lose mental capacity – without the delays associated with having to apply to the court.
There are two main types of enduring power of attorney:
- Springing: this is activated only if you lose mental or legal capacity, with a diagnosis of loss of capacity effectively triggering the power of attorney agreement.
- Continuing: this is where you authorize the powers granted under specific or general power of attorneys to legally continue if you lose mental capacity.
What could happen if you fail to plan for loss of mental capacity in Alberta?
The mistake that many people in Calgary make with powers of attorney is leaving it too late. You are only legally able to sign a power of attorney agreement while you retain the mental capacity to do so.
Once you lose this capacity, unless the right documents are in place, your loved ones may have to apply to the court for the relevant decision-making powers and for access to your financial accounts to manage your affairs.
Needless to say, this involves unnecessary delays and expenses at a time that is already troubling and emotional for the family. It can also lead to disputes and in-fighting between family members who believe they have the right to make decisions or control your assets.
In some cases, it may also end with a public trustee having to make financial decisions for you.
If you provide the authority for an individual or a small group of individuals through the right estate planning documents like powers of attorney, you reduce the chance of disputes and delays.
What are the basic rules for creating a POA in Alberta?
Because of the potential for abuse of power of attorney agreements, strict guidelines are set out for creating these documents in Alberta. The Powers of Attorney Act governs how POAs must be created here.
Following are the basic requirements:
- The donor and the attorney must be at least 18 years old
- The attorney must be mentally capable and understand the responsibilities of the role (especially with regard to acting in the donor’s best interests at all times and maintaining confidentiality)
- The document must be signed by both parties with a witness present
- The attorney cannot be a witness
The witness must sign an “Affidavit of Execution” before a Notary Public or a Commissioner for Oaths. This document needs to confirm the following information:
- They were present when the document was signed
- They know the donor
- The document was signed without coercion
- The donor understands the document
If the attorney acts within the scope of the power awarded, he or she has the legal right to take all necessary actions until one of the following occurs:
- The attorney’s power is revoked
- The donor loses mental capacity and no Enduring Power of Attorney is in place
- The donor passes away
- The POA is no longer required
Upon death, a power of attorney ends automatically. The personal representative named in the last will then acts on behalf of the decedent’s estate.
Can you revoke a power of attorney in Calgary?
Once a power of attorney is in place, you may revoke it providing you have the mental capacity to do so.
Your relationship with the attorney may change, you may have identified someone more appropriate or capable, or you may no longer require the Power of Attorney.
A Revocation of Power of Attorney document provides written legal confirmation that you want to cancel your attorney’s power.
What are the benefits of a power of attorney?
There are several practical benefits that a power of attorney can bring – all of which add up to greater peace of mind.
Notably, the agreement allows you to:
Feel more assured that your finances will be looked after even if you lose capacity
Keep your attorney(s) accountable by law
Be specific or general about the powers you award to your attorney
Remain flexible – it can be changed in the future if need be
Prevent unnecessary delays, expenses and disputes for loved ones
Create a power of attorney in Calgary
Please contact us now to schedule a consultation or call us at (403) 452-0043. We look forward to meeting with you.