FREQUENTLY ASKED QUESTIONS – WILLS, EPA, PERSONAL DIRECTIVES
What is an Enduring Power of Attorney?
An “Enduring Power of Attorney” is a Power of Attorney that contains a clause stating that the powers remain in effect after a donor suffers a loss of capacity.
There are two types of Enduring Powers of Attorney:
1. An immediate Enduring Power of Attorney takes effect immediately and specifically states that it is to continue even if the donor becomes mentally disabled.
2. A springing Enduring Power of Attorney takes effect when the donor becomes mentally disabled or some other specified event occurs.
What are the formal requirements for an Enduring Power of Attorney?
An Enduring Power of Attorney must:
· be in writing and dated,
· be signed by the donor in the presence of a witness,
· be signed by the witness in the presence of the donor, and
· contain one of the following statements
a. it is to continue notwithstanding any mental incapacity or infirmity of the donor that occurs after the execution of the Power of Attorney, or
b. it is to take effect on the mental incapacity or infirmity of the donor.
Enduring Powers of Attorney have only been in force since the enactment of the Powers of Attorney Act on June 25, 1991.
Who can act as an attorney under an Enduring Power of Attorney?
Any adult can be appointed as an attorney. An attorney does not have to be a resident of Alberta to act for someone living in Alberta or deal with property located in Alberta.
A donor can appoint more than one attorney. An attorney can be a person, a financial institution or a combination of both.
A donor should be very careful when choosing an attorney. The donor should have confidence that the person chosen will act in the best interests of the donor and have sufficient expertise to deal with the donor’s property.
The donor should ensure that the chosen attorney is aware of the Enduring Power of Attorney and agrees to being appointed.
The Public Trustee cannot act as an attorney.
If I do not have an Enduring Power of Attorney and I lose capacity, how are decisions about my finances and property made?
A Trusteeship Order must be obtained by order of the Surrogate Court (Court of Queen’s Bench). In this case, a court appoints a trustee to manage your finances and property. You do not get to choose who the trustee is.
What is a will?
A will is a document containing your instructions and wishes as to how your property and assets are to be distributed after your death. A will is especially necessary if you have assets and property that you wish to specifically allocate to particular beneficiaries.
How is my property distributed if I do not have a will?
Dying without a will or a valid will, is called intestacy. If you do not have a will (or if you do not have a valid will), your property will be distributed according to the Wills and Succession Act of Alberta. This statute sets out who your beneficiaries are and what portion of your estate they will receive. You do not get to choose who your property is distributed to and you do not get to choose who administers your estate. The Surrogate Court (the Court of Queen’s Bench of Alberta) appoints an Administrator for your estate and that person oversees the administration of your estate.
For example, under the Wills and Succession Act, if an individual dies without a will, and leaves a surviving spouse or adult interdependent partner but no descendants, the entirety of his or her estate goes to his or her surviving spouse or adult interdependent partner.
For more information about property distribution under intestacy, please contact Kazmi Law Office.
Why should I make a will?
The five main reasons for making a will are as follows:
1. You can distribute your estate the way you see fit;
2. You can choose your beneficiaries and how much each beneficiary receives (and in some cases, when the beneficiary receives his/her gift);
3. You can choose how your estate is to be administered and by whom as you select the Personal Representative (the executor);
4. You can allow or provide for otherwise unforeseen events or contingencies by giving your Personal Representative discretion as to how to administer your estate; and
5. You can appoint guardians for your minor children.