How Do I Set Up a Power of Attorney in Alberta?

Steps to set up a power of attorney in Alberta

A power of attorney (POA) is a legal document in which a donor (the person making it) authorizes an attorney (the person named to act) to handle financial and property matters on their behalf (Powers of Attorney Act, RSA 2000, c P-20). Setting one up in Alberta follows a small number of concrete steps.

1. Decide whether you want the authority to survive incapacity. An ordinary power of attorney ends if the donor later becomes mentally incapable. An enduring power of attorney is different: its defining feature is that the attorney’s authority is not terminated by the donor’s later mental incapacity or infirmity (Powers of Attorney Act, RSA 2000, c P-20, s 2). Alberta’s government describes this document as “enduring” precisely because the attorney’s power either continues or comes into effect after the donor loses capacity.

2. Choose who will act as your attorney. Under the Act, “attorney” means the person empowered to act on behalf of the donor under the power of attorney (s 1(a)). There is no prescribed list of eligible attorneys in the fact sources reviewed here, so this choice, and any conditions attached to it, is set out in the document itself.

3. Draft the document. Alberta has no regulated or mandatory form for making an enduring power of attorney, so the content and format of the document are not fixed by government template. What matters is that it meets the Act’s signing and witnessing requirements, covered below.

4. Decide how and when the authority is triggered. If you want the power of attorney to spring into effect on your incapacity rather than immediately, the document can specify who determines that incapacity has occurred. If the document is silent on this point, two medical practitioners must make a written declaration before that determination is treated as made (Alberta.ca, Enduring power of attorney).

5. Sign in the correct manner. If the donor is physically unable to sign, another person may sign on the donor’s behalf, at the donor’s direction, in the presence of both the donor and a witness (s 2). Alberta also allows remote signing: the donor and witness are deemed to be in each other’s presence if they are connected by an electronic method of communication that lets them see, hear, and communicate with each other in real time (s 2.1(1)). This remote option is only available where a practising lawyer, an active member under the Legal Profession Act, is providing legal advice and services on the making, signing, and witnessing of the document (s 2.1(2)).

6. Register the document if it affects land. A special power of attorney affecting land can be registered against title at a Land Titles Office for a set fee of $10, plus $5 for each additional title affected (Tariff of Fees Regulation, Alta Reg 120/2000). Fees for registering any document or plan at a Land Titles Office are set by that regulation and are required at the time of submission (Alberta.ca, Register a land title document or plan).

7. Distribute and store copies. Once signed, the donor, attorney, and anyone who will need to rely on the document, such as a bank or a lawyer, typically need access to a copy so the attorney’s authority can be verified when it is used.

Where capacity and medical evidence come in

Because an enduring power of attorney is built around what happens if the donor becomes mentally incapable, the document’s treatment of incapacity is one of its most important features. If the donor’s own document does not name who decides whether incapacity has occurred, the Act’s default is a written declaration from two medical practitioners (Alberta.ca, Enduring power of attorney). This default only fills a gap; a document that clearly names its own trigger and decision-maker avoids relying on it.

It is also worth knowing what the Office of the Public Guardian and Trustee (OPGT), the Alberta government body responsible for aspects of adult guardianship and trusteeship, does not do here: it cannot assess a donor’s capacity or provide legal advice on setting up an enduring power of attorney (Alberta.ca, Enduring power of attorney). Capacity assessment and legal drafting advice need to come from elsewhere, such as a physician and a lawyer.

Signing in person versus by video

Alberta’s default signing rule assumes the donor, any person signing on the donor’s behalf, and the witness are physically together (s 2). The Act’s electronic-presence provision is an exception, not a general option: it only applies where a practising Alberta lawyer is providing legal advice and services on the making, signing, and witnessing of the specific enduring power of attorney being signed (s 2.1(2)). Outside that circumstance, the general rule requiring physical presence continues to apply.

Registering a power of attorney against land

Most enduring powers of attorney are never registered anywhere; they are simply signed, witnessed, and kept available to show to banks or other institutions when the attorney needs to act. Registration at a Land Titles Office becomes relevant specifically for a special power of attorney affecting land, which can be registered against the title for $10, plus $5 per additional title affected (Tariff of Fees Regulation, Alta Reg 120/2000). As with other Land Titles Office filings, this fee is payable at the time the document is submitted for registration (Alberta.ca, Register a land title document or plan).