Enduring Powers Of Attorney
INFORMATION ABOUT ENDURING POWERS OF ATTORNEY
This outline contains information to assist you in discussing and deciding what provisions you want to put in your Enduring Power(s) of Attorney. One point to remember is that if you are married, as spouses you will actually be signing separate Enduring Powers of Attorney. You can therefore have different provisions in each Enduring Power of Attorney, for example having different alternate Attorneys.
The first decision to make is to select the person who you want to look after your financial, legal and property matters. This person is known as your “Attorney”. There are a number of persons eligible to be appointed as an Attorney - spouses, brothers or sisters, parents, children over the age of 18, friends, acquaintances, or a trust company. In the case of a married couple, each spouse should appoint their spouse the Attorney to begin with, unless for reasons of illness or age it would make more sense to have someone else appointed.
You should also appoint someone as an alternate Attorney, in case your first named Attorney dies before you or because of illness is unable to serve when the time comes. You may appoint more than one person to be an Attorney, in which case they would be joint Attorneys. If one of those joint Attorneys did not wish to serve, they could resign from the appointment.
When appointing someone other than a spouse as your Attorney or as an alternate Attorney, you should choose someone in whom you would have confidence and trust that your affairs would be handled properly. It is helpful if the person has some general experience in handling business or legal matters, but the lack of that experience is certainly not a disqualification. If when you become incapacitated, neither of the primary Attorney nor the alternate Attorney(s) are then living, then one of your family members or relatives may be required to act as the Attorney.
Many Albertans have their parents or siblings living elsewhere in Canada. You are allowed to appoint someone who lives outside Alberta as your Attorney. In some cases there will be no alternative but to appoint an Attorney or alternate Attorney who lives outside of Alberta. However, it is preferable if possible to have someone living in Albert appointed as your Attorney. You do not as a strict requirement need to have the consent of your proposed Attorney(s) to their being appointed as such in your Enduring Power of Attorney. As a practical matter, however, it would be wise to seek their consent. If they declined to act after you become incapacitated, there could be a delay in arranging for a new Attorney.
You will also need to decide if you want the Enduring Power of Attorney document to take effect only in the future if you become incapacitated, or if you would like it to have immediate effect. Unless you are experiencing a medical situation, or about to enter into treatments for a serious medical condition, it is usually best to have the document take effect only in the future at such time as you may become incapacitated. If you wish to make the document take effect immediately, you do not have to be incapacitated to do so. It simply becomes a declaration that you want it to have immediate legal effect, regardless of your status.
If you have any questions or concerns prior to developing your Enduring Power of Attorney instructions, please feel free to contact me to discuss them. The laws governing these issues are sometimes complicated, and this outline only provides basic information on general points. If you have any specific problems or desires, you should obtain specific legal advice and opinion on those matters.