Types of Power of Attorneys

📘 What Is a Power of Attorney?

A Power of Attorney (POA) is a legal document that grants one person the authority to act for another in financial or legal matters. In real estate, a POA may authorize someone to sell, lease, or manage property on the donor’s behalf.

🧾 Types of Power of Attorney in Alberta

1. General Power of Attorney

• Grants broad authority to the attorney over the donor’s financial and legal matters

• Does not include healthcare or personal care decisions

• Ends immediately if the donor becomes mentally incapacitated or dies

• Common for short-term use when full control is delegated
  
  

2. Special (Limited) Power of Attorney

• Grants the attorney authority for specific tasks or time periods

• Often used when the donor is out of the country or temporarily unavailable

• Common in real estate:

  • Selling a property

  • Signing mortgage documents

  • Registering documents with Land Titles
    
    

• If registered on title, suspends the donor’s ability to deal with the property
  
  

3. Immediate Power of Attorney

• Takes effect as soon as it is signed

• Used when the donor wants the attorney to act immediately, even if they are still capable

• Terminates if the donor loses capacity or dies

• May be used in real estate transactions needing immediate delegation
  
  

4. Enduring Power of Attorney

• Remains valid even if the donor becomes mentally incapacitated

• May take effect:

  • Immediately and continue if capacity is lost, or

  • Only upon incapacity (called a Springing POA)

• Must clearly state that it is enduring to be valid after mental incapacity

• Common in estate, elder care, or long-term planning
  
  

✅ Agent Responsibilities – When Dealing With a POA

1. Ask upfront:

“Are you the legal owner of the property, or are you acting under a Power of Attorney?”

2. Request and review the POA document

• Must be:

  • Current and unrevoked

  • Signed and properly witnessed

  • Clearly authorize real estate transactions

• If it's a Springing POA, ensure proof of mental incapacity has been triggered (e.g., doctor’s letter)
  
  

3. Check Title

• If the POA has been registered at Land Titles, the donor cannot deal with the property

• Confirm:

  • The attorney is named on title (if applicable)

  • No caveats or restrictions interfere with sale
    
    

4. Use correct seller name format

✅ Example:
“Jane Smith, as Attorney for John Smith under Power of Attorney dated [Date]”

❌ Do not list the donor’s name only unless they are signing personally

5. Retain copies in the brokerage file

• A full copy of the POA document

• Title showing any POA registration or restrictions

• Written acknowledgment from lawyer or client if POA is Springing
  
  

🔒 FINTRAC Compliance – Power of Attorney

A Power of Attorney scenario requires a Third Party Determination under FINTRAC rules.

✅ What to Do:

• The attorney (person signing) is your client

• The donor is the third party

• Complete the following:

  • ID verification of the attorney

  • Client Identification Record

  • Third Party Determination form

  • Record the donor’s:

    • Full legal name

    • Date of birth (if available)

    • Address

    • Relationship to the attorney

Brokerage FINTRAC Policy:
“In transactions involving a Power of Attorney, the real estate professional must identify and verify the attorney as the client. The donor is considered a third party and must be recorded accordingly under FINTRAC’s third-party determination requirements.”

🔍 Common POA Red Flags in Real Estate

• Springing POA used before incapacity is verified

• Outdated POA or missing witness signatures

• Title shows donor still active but POA is attempting to sell

• Donor disputes the POA’s authority

• Missing legal review when multiple attorneys are named jointly
  
  

✅ Agent Checklist

• Ask who holds authority to sell

• Request and review the POA document

• Confirm POA grants real estate authority

• Pull title to check for POA registration or restrictions

• Complete FINTRAC ID + Third Party Determination

• Use correct seller name format

• Keep all documents in the file