Acting as a loved one’s attorney for property (or guardian of property) is often a thankless job that is not only a large time commitment but also involves taking on responsibilities and liability. Because attorneys for property often don’t meet with a lawyer before they start acting, they may not be aware of all their legal duties and obligations.
In Ontario, an attorney’s powers and duties are governed by the Substitute Decisions Act, 1992, subject to any limitations in the Power of Attorney document executed by the now incapable person (the “grantor”). In accordance with section 32 and 38(1) of the Substitute Decisions Act, 1992, an attorney for property must act “diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.” An attorney for property will be liable for damages resulting from a breach of the attorney’s duty.
The following is a list of five important duties of an attorney for property and/or guardian of property:
- KEEP GOOD RECORDS! Failure to keep records is the most common pitfall of attorneys. Attorneys must keep records of all transactions and may be called to account by the grantor’s attorney for personal care, the grantor’s dependents, the Public Guardian and Trustee, or a number of other interested parties. An attorney for property should keep receipts, invoices, and any supporting documents related to expenses and income.
- An attorney for property should make decisions with only the grantor’s best interests in mind. The attorney for property (or their family and friends) should not benefit from acting as attorney for property at the expense of the grantor.
- Review the power of attorney document carefully to ensure there are no restrictions on the authority to act. A grantor can limit an attorney for property’s authority in the Power of Attorney document and, therefore, an attorney should review the document carefully, and seek legal advice if clarification is needed, before acting. For example, the grantor may have limited which assets the attorney for property can deal with.
- Cooperate and engage with the grantor and supportive friends and family. An attorney for property should encourage participation of the grantor in decision-making if at all possible. The attorney for property should also periodically consult with supportive friends and family members of the grantor as appropriate.
- Maintain privacy of the grantor’s records. An attorney for property should be mindful to keep the grantor’s information confidential.
*This list is not intended to be comprehensive. Anyone acting as an attorney of property or guardian of property is encouraged to seek legal advice regarding their duties and obligations.
Our lawyers have extensive experience dealing with power of attorney disputes, including applications to court for an attorney or guardian to pass their accounts. If you have any questions about an attorney’s duties, our team would be pleased to assist you.
