Clarifying Terms for Edmontonians: Wills, Enduring Powers of Attorney, and Personal Directives
24 December 2020
Disclaimer: this blog post is not intended to provide any legal advice or to create a solicitor-client relationship, but merely to offer information for residents of Edmonton, Alberta.
It can be challenging to navigate the documents that are necessary to ensure that our affairs are in order in the event of an unexpected serious injury or eventual decline. In Alberta, there are three principal legal documents that should be considered in the context of incapacity and death: (1) a will, (2) power of attorney, and personal directive.
Wills in Alberta are governed by the Wills and Succession Act, SA 2010, c W-12.2. A formal will must be signed by the person making the will in the presence of two witnesses who are both present at the same time, and each of the witnesses must sign in the presence of the testator (a mouthful, to be sure!). Beneficiaries, executors, and their spouses cannot act as witnesses. When applying for probate in Alberta, an Affidavit of Witness to a Will (NC 8 Surrogate Form) is required. The best practice is to have at least one of the witnesses (or both, if the witnesses are elderly) swear an Affidavit of Witness when the will is being signed.
Enduring Powers of Attorney are regulated by the Powers of Attorney Act, RSA 2000, c P-20. Not to be confused with special powers of attorney for particular circumstances, the enduring power of attorney authorizes someone to take care of your financial affairs when you are no longer able. There must be at least one witness (certain individuals are precluded), who should also swear an Affidavit of Witness.
Personal Directives are unique to Alberta: Personal Directives Act, RSA 2000, c P-6 (https://www.canlii.org/en/ab/laws/stat/rsa-2000-c-p-6/latest/rsa-2000-c-p-6.html). A Personal Directive is a document that gives power to someone to take care of your personal needs and decisions, when you no longer have capacity. The Agent authorized under your Personal Directive can make personal decisions of a non-financial nature on your behalf. These decisions relate to your health care, place of residence, who you live with, and your social activities, among other things. At least one witness is required under the legislation when signing the Personal Directive, and it is best if an Affidavit of Witness (or Execution) is commissioned at the same time.
Notary Pro lawyers in Edmonton are able to serve you by facilitating the witnessing of your documents and commissioning your Affidavits.
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