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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.
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Definitions: |
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"Grantor" - the person who appoints
someone else to manage and handle his/her finances and other property
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"Attorney" - the person(s) (including a
Trust Company) chosen to manage and handle someone else's
finances and property
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Effective Date:
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during the time that the Grantor is capable,
the Attorney can act whenever the Grantor makes the request
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this
could include when the Grantor is away on vacation |
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when
the Grantor is not capable of managing her/his assets, the
Attorney commences acting on behalf of the Grantor |
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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 |
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Duties of Attorney:
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once authorized to act as Attorney, the Attorney
should obtain a copy of the Power of Attorney for Property document from whoever
has it
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determine if there are any specific duties given in
the Power of Attorney for Property document
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document can authorize Attorney to do a wide range
of things in respect of property on behalf of the Grantor except make a will
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determine if there are any specific restrictions
contained in the Power of Attorney for Property
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explain the powers and duties of the Attorney to the
Grantor
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encourage the Grantor to participate in decisions to
the best of his/her ability
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encourage
regular personal contact between the Grantor and supportive family
members and friends |
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consult with:
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supportive
family members and friends who are in regular personal contact with the
Grantor
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persons
providing personal care to the Grantor |
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consider the effect of any decision on the Grantor's
personal comfort or well being
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Expenditures:
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certain expenditures are mandatory by
the Attorney:
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they include what is reasonably necessary for Grantor's support and care and
that of dependants
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criteria include value of assets, the accustomed standard of living of the
Grantor and her/his dependants
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they also include what is necessary to satisfy the
Grantor's other legal obligations
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optional
expenditures by Attorney:
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in some cases:
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- gifts or loans to Grantor's friends and relatives
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- charitable gifts
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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.
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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.
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Investments:
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the Trustee Act does not apply to the Attorney
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therefore,
for example, the Attorney does not have to worry about an authorized
list of investments |
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Grantor's Last Will:
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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.
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The Attorney shall not dispose of property that is subject to a specific
bequest in the Grantor's will, unless: |
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1.
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it is a bequest of money; or
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2.
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it is necessary to dispose of it in order for the Attorney to comply
with the
Attorney's duties; or
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3.
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it is to the beneficiary of the bequest and gifts are authorized by the
Power of Attorney document.
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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
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by
extension, in the event that this happens, the residual beneficiaries of
the Grantor's estate may have recourse against the Attorney
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therefore,
the Attorney needs to be extremely careful about disposing of any
specific bequest that is made in Grantor's will
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A
3rd party must provide to the Attorney any information that
the Attorney requests concerning the Grantor's property or the Grantor's
will
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Accounting Requirements:
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Attorney must keep a proper financial accounting ie.
keep accounts of all transactions involving the assets
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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
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see the separate article by Norman Pickell on "Accounts
and Records to be Kept by Property
Attorney"
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Attorney shall not disclose any information
contained in these accounts and records except:
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1.
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to the Grantor upon request of the Grantor;
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2.
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to the Grantor's Personal Care Attorney upon request
of the said Attorney;
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3.
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to a subsequently named Property Attorney;
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4.
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to the Grantor's Estate Trustee upon the death of
the Grantor;
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5.
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as required by Court Order; or
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6.
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as is consistent with or related to his/her duties
as Attorney.
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Court
Intervention:
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The Court can give directions on any question arising in the
management of the Grantor's assets
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the following people can apply to the Court for these
directions:
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1.
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the Property Attorney;
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2.
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the Personal Care Attorney;
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3.
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a dependant of the Grantor;
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4.
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the Public Guardian and Trustee ie. a representative
of the Ontario Government;
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5.
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with the permission of the Court, any other
person; this can include a relative or friend of the Grantor.
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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
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the following people can apply to have the Court make such an
order:
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1.
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the Grantor
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the Property Attorney;
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3.
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the Personal Care Attorney;
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4.
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a dependant of the Grantor;
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5.
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the Public Guardian and Trustee and/or the
Children's Lawyer ie. a representative of the Ontario Government;
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6.
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a creditor of the Grantor who has a Court Judgment
against the Grantor
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7.
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with the permission of the Court, any other
person; this can include a relative or friend of
the Grantor.
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Compensation
of Attorney:
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Attorney is entitled to receive compensation for
acting as such - however, note:
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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
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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
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Termination
of Powers of Attorney:
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The powers of a specific Property Attorney end upon the earliest
of:
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1.
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the death of the Grantor;
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2.
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when the Power of Attorney is revoked;
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3.
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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;
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4.
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when the Court appoints a Guardian of Property;
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5.
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when the Attorney becomes incapable of managing the Grantor's
assets;
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6.
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when the Attorney resigns;
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7.
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when the Attorney dies.
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Liability of
Attorney:
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Attorney is liable for damages resulting from a breach of
the Attorney's duties
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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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