Are you acting under a Continuing Power of Attorney for Property?
If so, you may want to read this.
- Introduction:
- Duties of the Attorney:
An overarching principle which applies to you as Attorney is to act so as not to do or omit to do anything that would harm the person who appointed you (the grantor) and for whom you are acting or that would jeopardize that person’s health or welfare. There is an expectation of trust created by your appointment.
The law considers an Attorney to be a fiduciary who is in a special relationship with the grantor. As a fiduciary, the Attorney has the power to affect the grantor’s legal position.
In addition to the requirement under the Substitute Decisions Act (Ontario) that the Attorney exercise his/her powers with honesty, integrity and good faith and for the incapable person’s benefit, and to specific duties set out in the Continuing Power of Attorney for Property (POAP), the Attorney must comply with common law obligations, of which the following are the most important:
- Stay within the scope of the authority granted
- Exercise reasonable care and skill
- Not make secret profits
- Not act in conflict with or contrary to the grantor’s interests
- Account for financial dealings on behalf of the grantor when legally called upon to do so
- Not exercise the POAP for personal benefit unless authorized to do so by the terms of the POAP, or unless the Attorney acts with the full knowledge and consent of the grantor
- Manage the grantor’s property in a manner consistent with decisions for the grantor’s personal care
- Explain to the incapable person (if he/she is able to understand) the Attorney’s powers and duties
- Encourage the incapable person’s participation in decisions to the best of his/her ability
- Consult with the incapable person from time to time as well as other family members and friends
- Make expenditures as reasonably required for the incapable person’s care and support while keeping in mind the value of the assets of the incapable person, including his/her standard of living and other legal obligations.
In my next blog, I will address the topic of the Attorney spending the grantor’s money.
How can Tierney Stauffer LLP help?
The estates lawyers at Tierney Stauffer LLP are experienced in carefully and thoroughly drafting and giving advice regarding the legal requirements of Continuing Powers of Attorney for Property.
Please do not hesitate to contact me for more information on how I can assist you in respect of your meeting the legal obligations imposed on you as an appointed Attorney.
John S. Grant, Q.C
Senior Legal Advisor – Business Law and Estates Groups
Disclaimer: This article is provided as an information resource. This article should not be relied upon to make decisions and is not intended to replace advice from a qualified legal professional. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. Please note that this information is current only to the date of posting. The law is constantly changing and always evolving.