Duties and Responsibilities of Attorney for Property


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Prepared by Norman Pickell, a lawyer based in Goderich, Ontario, who prepares Powers of Attorney and provides legal advice concerning the same.


Definitions:
"Grantor" - the person who appoints someone else to manage and handle his/her finances and other property
"Attorney" - the person(s) (including a Trust Company) chosen to manage and handle someone else's finances and property
Effective Date:

during the time that the Grantor is capable, the Attorney can act whenever the Grantor makes the request
this could include when the Grantor is away on vacation
when the Grantor is not capable of managing her/his assets, the Attorney commences acting on behalf of the Grantor
the Grantor is not capable of managing his/her assets if the Grantor is not able to understand information that is relevant to making a decision in the management of the assets, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision


Duties of Attorney:

once authorized to act as Attorney, the Attorney should obtain a copy of the Power of Attorney for Property document from whoever has it
determine if there are any specific duties given in the Power of Attorney for Property document
document can authorize Attorney to do a wide range of things in respect of property on behalf of the Grantor except make a will
determine if there are any specific restrictions contained in the Power of Attorney for Property
explain the powers and duties of the Attorney to the Grantor
encourage the Grantor to participate in decisions to the best of his/her ability
encourage regular personal contact between the Grantor and supportive family members and friends
consult with:
supportive family members and friends who are in regular personal contact with the Grantor
persons providing personal care to the Grantor
consider the effect of any decision on the Grantor's personal comfort or well being

Expenditures:

certain expenditures are mandatory by the Attorney:
they include what is reasonably necessary for Grantor's support and care and that of dependants
criteria include value of assets, the accustomed standard of living of the Grantor and her/his dependants
they also include what is necessary to satisfy the Grantor's other legal obligations  
optional expenditures by Attorney:
in some cases:
- gifts or loans to Grantor's friends and relatives
- charitable gifts

Norman Pickell puts a clause in each Property Power of Attorney which says "Yes" or "No" to each of these Optional Expenditures so that there will be no second guessing.

Where these optional expenditures are going to be made, s. 37 (3), (4) and (6) of the Substitute Decisions Act provide rules to be followed.


Investments:

the Trustee Act does not apply to the Attorney
therefore, for example, the Attorney does not have to worry about an authorized list of investments

Grantor's Last Will:

If the Grantor is incapable of managing property, the Attorney shall make reasonably efforts to locate the Grantor's last will and to determine what the provisions of it are.
The Attorney shall not dispose of property that is subject to a specific bequest in the Grantor's will, unless:
1. it is a bequest of money; or
2. it is necessary to dispose of it in order for the Attorney to comply with the Attorney's duties; or
3. it is to the beneficiary of the bequest and gifts are authorized by the Power of Attorney document.
if an Attorney does dispose of a specific bequest (for whatever reason), the recipient named in the will of that specific bequest has certain recourse against the balance of the Grantor's estate upon the Grantor's death
by extension, in the event that this happens, the residual beneficiaries of the Grantor's estate may have recourse against the Attorney
therefore, the Attorney needs to be extremely careful about disposing of any specific bequest that is made in Grantor's will
A 3rd party must provide to the Attorney any information that the Attorney requests concerning the Grantor's property or the Grantor's will


Accounting Requirements:

Attorney must keep a proper financial accounting ie. keep accounts of all transactions involving the assets
the form of the accounts is very similar to what is required for estate accounts pursuant to Rule 74.17 of the Rules of Civil Procedure
see the separate article by Norman Pickell on "Accounts and Records to be Kept by Property Attorney"
Attorney shall not disclose any information contained in these accounts and records except:
1. to the Grantor upon request of the Grantor;
2. to the Grantor's Personal Care Attorney upon request of the said Attorney;
3. to a subsequently named Property Attorney;
4. to the Grantor's Estate Trustee upon the death of the Grantor;
5. as required by Court Order; or
6. as is consistent with or related to his/her duties as Attorney.

Court Intervention:

The Court can give directions on any question arising in the management of the Grantor's assets

the following people can apply to the Court for these directions:

1. the Property Attorney;
2. the Personal Care Attorney;
3. a dependant of the Grantor;
4. the Public Guardian and Trustee ie. a representative of the Ontario Government;
5. with the permission of the Court, any other person; this can include a relative or friend of the Grantor.

The Court can order that all or parts of the Attorney's accounting records relating to the Grantor be brought before the Court for scrutiny

the following people can apply to have the Court make such an order:

1. the Grantor
2. the Property Attorney;
3. the Personal Care Attorney;
4. a dependant of the Grantor;
5. the Public Guardian and Trustee and/or the Children's Lawyer ie. a representative of the Ontario Government;
6. a creditor of the Grantor who has a Court Judgment against the Grantor
7. with the permission of the Court, any other person; this can include a relative or friend of the Grantor.

Compensation of Attorney:

Attorney is entitled to receive compensation for acting as such - however, note:

an Attorney who does not receive compensation shall exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his /her own affairs

whereas, an Attorney who does receive compensation shall be held to the higher standard of a person in the business of managing the property of others


Termination of Powers of Attorney:

The powers of a specific Property Attorney end upon the earliest of:

1.

the death of the Grantor;

2.

when the Power of Attorney is revoked;

3.

when the Grantor signs a new Property Power of Attorney, unless the Grantor provides in the Power of Attorney document that there shall be multiple Property Powers of Attorney;

4.

when the Court appoints a Guardian of Property;

5.

when the Attorney becomes incapable of managing the Grantor's assets;

6.

when the Attorney resigns;

7.

when the Attorney dies.


Liability of Attorney:

Attorney is liable for damages resulting from a breach of the Attorney's duties

however, a Court may relieve an Attorney from all or part of the liability if the Attorney has acted honestly, reasonably and diligently


 

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Norman B. Pickell  Lawyer - Mediator - Arbitrator  58 South Street, Goderich, Ontario N7A 3L5  Telephone (519) 524-8335   Fax (519) 524-1530