You are appointed as an Attorney under an Enduring Power of Attorney [EPA]. This position brings great responsibilities. An Attorney named in an EPA is not a lawyer; “Attorney” refers to the person that is appointed in a Power of Attorney.

You have a fiduciary duty to the person who appointed you in his or her EPA, called the Donor. That is, you are like a Trustee and you hold the Donor’s property in trust for him or her. You must:

1. act in the Donor’s best interests,
2. keep the Donor’s property safe,
3. only use the Donor’s property for his or her benefit unless the Donor has given you the specific authority to use his or her property for someone else’s benefit as well,
4. not take any benefit from the Donor’s property for yourself.

Usually, an Attorney’s authority in an EPA is unlimited. But sometimes the Donor puts limits in the EPA and restricts what you, the Attorney, may or may not do with the Donor’s property.

You must read the EPA very carefully to ensure that you understand what authority the Donor gives to you and what authority is withheld from you.

As an Attorney, you are entitled to be paid a reasonable fee (which is taxable income in your hands) for acting in this capacity. There is no set fee (sometimes called a tariff), but the fee is often comparable to fees awarded to trustees who act in the estate of a deceased person.

What follows is a list of some of your duties. This list is not exhaustive. The nature of a Donor’s property may require you to do more than what is indicated in this list. Some things in the list may not apply in your situation.
Initial duties

1. Review the EPA’s provisions.
2. Note whether or not the Donor specifies that funds can be used to benefit others, such as a spouse, dependent children, or charitable groups.
3. Note what must be done to bring the EPA into effect.
4. Some EPAs are effective on the date they are signed. However, most come into effect only when the Donor loses mental capacity. In that case, a letter is required, indicating that the triggering event (the Donor’s incapacity) has occurred. The Donor may have specified who is to make this decision. If that is not the case, two medical practitioners must make it
5. Advise all financial institutions with whom the Donor deals that the EPA is in effect and that you are the appointed Attorney. Provide a notarized copy of the EPA to the banks or other financial institutions. Transfer the Donor’s bank accounts into your name as Attorney for the Donor.
6. Register the EPA against the Donor’s title to any real property (land). The Land Titles Office requires an original EPA (which they keep). If the EPA is not effective immediately on signing (i.e., if it is a “springing EPA”), you need a notarized copy of the letter that indicates the EPA is now in effect. (See paragraph 3.)
7. List all of the Donor’s property with current market values.
8. Ensure that real property (land and houses, commercial and farm buildings, etc.) are adequately insured. Notify the insurance company that you are acting as Attorney.
9. Ensure that other property (cars, boats, farm machinery, etc.) is adequately insured. Notify the insurance company that you are acting as Attorney.
10. Determine all of the Donor’s debts and arrange for payment.
11. Arrange for the payment of recurring debts, such as nursing home fees, utilities, phone, etc.
12. Determine the monthly payment to the Donor required for his or her living expenses.
13. Arrange to receive the Donor’s mail.
14. Arrange to list the contents of any safety deposit box.
15. Obtain a copy of the Donor’s will. Note the Donor’s intentions about his or her property in his or her will and ensure that his or her wishes are carried out as far as possible.

Investment duties:

1. Invest the Donor’s funds in accordance with the prudent investor rule or any other instructions given to you by the Donor in the EPA.
2. Consider what kind of investments are the best according to the Donor’s needs (e.g., need for income or invest for capital growth).
3. Engage an investment counsellor if necessary.
4. Review the investment portfolio on a regular basis.
5. Consider whether to sell or rent any real property.
6. Consider whether to sell or continue to operate any on-going businesses.

Accounting duties:

1. Keep a record of all financial transactions you make on the Donor’s behalf.
2. When you start to act as Attorney:
   • prepare an inventory of the Donor’s property and debts at that date at current market values,
   • keep a record of all income and other payments you receive for the Donor—including the amount and date of receipt,
   • keep a record of all payments you make to the Donor and other parties—including the amount and date of payment,
   • keep a record of all investments made by you for the Donor.
3. Provide an accounting to any people to whom you are required to account to according to the EPA (if any). You may consider accounting to the Donor’s beneficiaries in any case, whether or not you are required to do so. It is very difficult for beneficiaries to later cause difficulties about the period of your Attorneyship if you keep them advised throughout.
4. File annual tax returns with CRA and pay any assessed taxes.
5. Engage an accountant if necessary.

On the Donor’s death:

1. Account to the Donor’s executor, named in his or her will.

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1. Making arrangements for the disposition of the body and for funeral, memorial or other similar services.
2. Determining the names and addresses of those beneficially entitled to the estate property and notifying them of their interests.
3. Arranging with a bank, trust company or other financial institution for a list of the contents of a safety deposit box.
4. Determining the full nature and value of property and debts of the deceased as at the date of death and compiling a list, including the value of all land and buildings and a summary of outstanding mortgages, leases and other encumbrances.
5. Examining existing insurance policies, advising insurance companies of the death and placing additional insurance, if necessary.
6. Protecting or securing the safety of any estate property.
7. Providing for the protection and supervision of vacant land and buildings.
8. Arranging for the proper management of the estate property, including continuing business operations, taking control of property and selling property.
9. Retaining a lawyer to advise on the administration of the estate, to apply for a grant from the court or to bring any matter before the court.
10. Applying for any pensions, annuities, death benefits, life insurance or other benefits payable to the estate.
11. Advising any joint tenancy beneficiaries of the death of the deceased.
12. Advising any designated beneficiaries of their interests under life insurance or other property passing outside the will.
13. Arranging for the payment of debts and expenses owed by the deceased and the estate.
14. Determining whether to advertise for claimants, checking all claims and making payments as funds become available.
15. Taking the steps necessary to finalize the amount payable if the legitimacy or amount of a debt is in issue.
16. Determining the income tax or other tax liability of the deceased and of the estate, filing the necessary returns, paying any tax owing and obtaining income tax or other tax clearance certificates before distributing the estate property.
17. Instructing a lawyer in any litigation.
18. Complying with the requirement for filing an acknowledgment of trustee(s) before distributing any property to a trustee.
19. Preparing the personal representative’s financial statements, a proposed compensation schedule and a proposed final distribution schedule.
20. Distributing the estate property in accordance with the will or intestate succession provisions.

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1. Receiving instructions from the personal representatives.
2. Giving the personal representatives information and advice on all matters in connection with the administration of the estate, including the following:
   • the basis for the lawyer’s fees for the different categories of legal services;
   • the basis for the personal representatives’ compensation and preparation of the proposed compensation schedule
   • providing a copy of this Schedule to the personal representatives.
3. Reviewing the will or the provisions of Part 3 of the Wills and Succession Act with the personal representative.
4. Receiving information from personal representatives about the following:
   • the deceased;
   • the beneficiaries;
   • the estate property;
   • the deceased’s debts;
   • minors.
5. Obtaining details of all the property and debts of the deceased for the purposes of an application to the court, including the following:
   • the full nature and value of the property of the deceased as at the date of death including the value of all land and buildings and a summary of outstanding mortgages, leases and any other encumbrances;
   • any pensions, annuities, death benefits and any other benefits;
   • any debts owed by the deceased as at the date of death;
   • preparing all required documents for grant applications;
   • preparing notices to all beneficiaries;
   • arranging for surviving spouse or surviving adult interdependent partner to receive notices under Part 5, Division 2 of the Wills and Succession Act and Matrimonial Property Act, if necessary; (g) arranging for family members to receive notices under Part 5, Division 2 of the Wills and Succession Act, if necessary;
   • attending on signing of application for grant, filing with the court, payment of fees and dealing with the clerk;
   • advising the Public Trustee, if necessary;
   • receiving the grant.
6. Preparing documents to advertise for claimants, arranging for advertising and obtaining affidavit of publication.
7. Preparing declarations of transmission and powers of attorney for stocks and bonds transferrable under the Alberta grant.
8. Preparing transmission and transfer documents for land transferrable under the Alberta grant.
9. Preparing all other documents required to transmit and transfer property transferrable under the Alberta grant.
10. Advising the personal representatives on any trusts required by the will.
11. Advising the personal representatives to prepare and file tax returns.
12. Confirming receipt of clearance certificates from Revenue Canada.
13. Submitting personal representatives’ financial statements for approval to the beneficiaries on an informal basis.
14. Preparing releases and acknowledgments of trustee(s) and obtaining and filing them if so instructed by the personal representatives
15. Generally advising the personal representatives on all matters referred to herein

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