Posted by Graeme Maitland — filed in Wills and Estates Law
While technically separate from a Will, Enduring Powers of Attorney (EPAs) and Personal Directives (PDs) are an important part of the general ‘Estate Planning’ that everyone should undertake in their life. When you plan your Will, you’re planning for death; when you plan your EPA and PD, you’re planning in the event of some form of incapacity. Planning now will will help you and your loved ones in the event it ever happens.
An EPA allows a person to choose one or more persons to act as their attorney on matters legal and financial in the event of incapacity. An EPA created before a loss in capacity is carried on afterwards, this is what differentiates it from a regular Power of Attorney. The phrase ‘attorney’ here means someone appointed under this power, not a lawyer as the term means in the United States.
EPAs are governed under the Powers of Attorney Act. If an EPA does not exists, then someone needs to apply under the Adult Guardianship and Trusteeship Act to make decisions in the event of lost capacity. An EPA can be broad in scope, or limited to specific things the attorney has control over.
A person must have the mental capacity at the time of an EPAs creation for it to be valid. Other than that, as long as it conforms to the legislation, an EPA is valid.
A PD is similar to an EPA as it deals with incapacity. Here a person appoints another person as their Agent to make decisions for them in the event of future incapacity. A PD is used to plan for non-financial affairs, like medical treatment.
PDs are governed by the Personal Directives Act. If someone does not have a PD and becomes incapacitated, a persons seeking to become their Agent must apply for a guardianship order under the Adult Guardianship and Trusteeship Act.
Any adult can make a PD. It can even be made outside of Alberta; as long as it conforms to the legislation it will be valid.
If you require a Will, Enduring Power of Attorney, Personal Directive, or have questions about dealing with your estate after death, speak to one of the lawyers at Aarbo Fuldauer LLP in Calgary.
Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120
Email: [email protected]