Duties and Obligations of an Attorney for Property

Duties and Obligations of an Attorney for Property

Power of Attorney for Property (Part II)

On March 24th, 2022, Ian Hull and Suzanna Popovic-Montag discussed the duties and obligations of an Attorney for property in part 2 of eState Planner Academy’s 3-part series on Powers of Attorney for Property in a fast-paced and informative hour.

There were several key takeaways:

  1. SDA - The duties and obligations of an Attorney for property are codified in section 32 of the Substitute Decisions Act, 1992 (SDA) and apply to both a Guardian and Attorney for property.  The SDA is the appropriate starting point for any consideration regarding an Attorney for property. 

  1. Seek Guidance - The job of an Attorney for property is an onerous one, but few Attorneys seek legal advice even though they often have no idea of their actual duties and obligations. Advisors should encourage clients to get legal advice when acting.

  1. Fiduciary Duties - An Attorney for property is a fiduciary and should act with diligence, honesty, integrity and good faith for the incapable person’s benefit.  

  1. Personal Care - Attorneys for property can’t work in a vacuum, they need to act in a manner consistent with personal care decisions unless the adverse financial consequences “significantly outweighs” the personal care benefit.  Coordination between Attorneys for property and personal care is crucial.

  1. Consultation - An Attorney must consult family members and friends who are in regular contact with the incapable person. 

  1. Participation - An Attorney shall encourage the incapable person to voice their opinions and participate in decision making to the extent possible.

  1. Accounts - An Attorney has a duty to account. 

  1. Breach of Duty - An Attorney is liable for damages resulting from a breach of duty.  Courts will criticize Attorneys on the points set out above (ie. participation, consultation, accounts). 

  1. Standard of Care - An Attorney who receives compensation will be held to a higher standard of care (that of a person in the business of managing the property of others). 

  1. Will - An Attorney should obtain a copy of the incapable person’s Will. 

  1. Gifts & Self Dealing - Attorneys should avoid self dealing, but the SDA allows for gifting in certain circumstances. 

eState Planner Academy hosts advanced topic webinars every Thursday at 12:30 (ET). You can sign up for free CPD credits here:  

https://landing.e-stateplanner.com/en-ca/e-state-webinar

To watch a recording of this webinar, you can register here: https://landing.e-stateplanner.com/poa-property-part-2

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