What is an Enduring Power of Attorney
If you are rendered unconscious because of a car accident, or a stroke, who will look after your financial affairs? Likewise, if you are mentally disabled because of Alzheimer’s or some other dementia, who will carry on your business?
The Enduring Power of Attorney is a legal document by which you can appoint another person to manage and run your affairs in the event you become mentally incapable of doing so yourself.
Why Do You Need an Enduring Power of Attorney?
The loss of capacity to manage one owns affairs is becoming a fact of life for a growing number of Albertans. It is estimated that at least 10% of Canadians over the age of 65 and 20% of those over 80 years old, suffer from dementia of some kind, most commonly of the Alzheimer’s type. An Enduring Power of Attorney allows you to appoint a trusted individual who will have authority to run your financial affairs while you are mentally incapacitated. If you do not have an Enduring Power of Attorney, you will have no control over who looks after your financial affairs and your spouse or family may be forced to hire a lawyer to bring a court application to appoint somebody. This is certainly a more expensive and time consuming solution to a problem that could be dealt with by way of an Enduring Power of Attorney document.
What Kinds of Enduring Powers of Attorney Are There?
There are two basic kinds of Enduring Powers of Attorney. The first kind, an Immediate Power of Attorney, gives the attorney immediate power upon the document being signed. The second kind of Enduring Power of Attorney, will state that the attorney only has power if a mental incapacity occurs. We recommend that you discuss with your lawyer which Enduring Power of Attorney would best meet your needs. Those needs may change as your circumstances or requirements change.
Who Determines Whether I am Mentally Incapacitated Under a Standard Enduring Power of Attorney?
You may designate in your Enduring Power of Attorney a person or persons who can sign a written declaration declaring you to be mentally incapacitated. Once this declaration is signed, the Enduring Power of Attorney takes effect. Obviously, before you give such person or persons the power to determine whether you are mentally incapacitated, you want to be very sure that you trust that person to act in your best interests.
Most people state in their Enduring Power of attorney that it will take effect only if two medical practitioners declare that they are mentally incapacitated.
Do I Need a Lawyer to Prepare an Enduring Power of Attorney?
When you are signing any important legal document, such as an Enduring Power of Attorney, it makes good sense to consult with your lawyer, even though the law does not require it. Your lawyer should review with you the reasons you want an Enduring Power of Attorney and discuss whether or not it should have special provisions. You should also discuss with your lawyer what powers you wish to give to your appointed attorney.
What Basic Authority Will the Person I Appoint as my Attorney Have?
Your attorney may be given the authority to do anything you are legally capable of doing, as if you are well, unless you impose restrictions. For example, you could restrict the selling of your home, the selling of automobiles, the changing of your bank accounts, the running of your business and investment decisions.
Your attorney may also be given the authority to take care of the financial needs of your spouse and any dependent children.
Can I Revoke My Enduring Power of Attorney After I Have Granted It?
The Alberta law states that you can revoke your Enduring Power of Attorney at any time, provided that you have the mental capacity of understanding the nature and effect of the revocation.
What Happens to the Enduring Power of Attorney When I Die?
Your Enduring Power of Attorney is automatically revoked by your death and your Will, if you have one, will govern.
