Acting Under a Power of Attorney
Recipients of ODSP

1. Power of Attorney for Property
2. Power of Attorney for Personal Care.

A Power of Attorney for Property is a document which allows a person (Grantor) to appoint another person (Attorney) to act on the Grantor's behalf when they are not in a position to deal with their property and financial affairs. This may be due to illness or mental incapacity or because they are travelling. If a Power of Attorney is referred to as continuing Power of Attorney, this indicates that it continues to be effective even if the Grantor becomes mentally incapable.

A Power of Attorney for Personal Care allows a person to make medical treatment and personal care decisions for the Grantor. This brochure discusses the duties and responsibilities of an Attorney under a Power of Attorney for Property but not under a Power of Attorney for Personal Care.

A Grantor may appoint more than one Attorney. Where there are two or more Attorneys appointed, they must act jointly or together unless the Power of Attorney for Property says something different.

Scope of Authority as an Attorney
An Attorney can do anything relating to property and financial affairs that the Grantor could do if she or he were capable, except make or change a Will.

Limitations on an Attorney
An Attorney does not have the authority to stop the Grantor from dealing with his or her own property. If this became necessary, some one would have to make an application to Court to be appointed Guardian of Property.

Generally, an Attorney may not dispose of property which is specifically mentioned in the Grantor's Will except in very limited circumstances. For example, such disposition might become necessary to ensure there were enough funds to pay for the housing and care of the Grantor.

There may be specific limits on the Attorney's authority which are spelled out in the Power of Attorney for Property.

The Attorney's discretion to spend money on behalf of the Grantor is limited to the following:

• support, education and care of the Grantor;
• support, education and care necessary for the Grantor's dependants;
• debts and taxes of the Grantor.

The Attorney may not delegate (give) his or her authority to another person.

Can I Give Gifts or Make Loans on Behalf of the Grantor?
Provided there is enough money or assets to pay the above expenses, the Attorney can make charitable gifts on behalf of the Grantor if such gifts are mentioned in the Power of Attorney or if there is evidence that similar gifts were being made while the Grantor was capable. For example, prior year income tax returns may show that the Grantor made regular donations to certain charities. However, the gifts cannot total more than 20% of the annual income from the Grantor's property.

The Attorney can only make gifts and loans to people if the Grantor, when he or she was mentally capable, had expressed an intention to make the gift or loan.

What are my Duties?
The Attorney must consider the personal welfare of the Grantor and must communicate with the person who is the Attorney for Personal Care. In the case of a conflict between the two, precedence will likely be given to the Power of Attorney for Personal Care. The best interests of the Grantor must always be given top priority.

The Attorney must exercise a standard of care when acting on behalf of the Grantor. If acting without being paid, the Attorney is held to a standard of care, skill and diligence with which a typically prudent person would manage their own affairs. If being compensated (paid), the Attorney is held to the standard of a person in the business of managing other's person's affairs (solicitor or trust company).

The Attorney must keep an accounting (copies of receipts, cheques, deposits, bills paid, etc.) of all transactions made on behalf of the Grantor while acting under the Power of Attorney.

The Attorney must try to explain matters to the Grantor and encourage their participation in decision-making and considering the mental capacity of the Grantor.

The Attorney must make reasonable efforts to determine whether the Grantor has a Will and what the Will says.

The Attorney must consult with the Grantor's family and others close to him or her.

An Attorney can be sued if they fail to carry out their duties according to law.

Can I be Compensated for Acting as an Attorney?
Unless otherwise stated in the Power of Attorney, an Attorney is permitted to take compensation for work completed on behalf of the Grantor. The usual amount claimed is 3% of capital and revenue receipts and income disbursements annually. In addition, an Attorney can be paid a Care and Management fee of 3/5 of 1% of the average annual value of the assets being managed.

Termination of Authority
A Power of Attorney is terminated or cancelled by any of the following:

• the Grantor dies;
• the Attorney dies or becomes mentally incapable;
• the Grantor becomes bankrupt;
• the Attorney renounces by giving notice to the co-Attorney or substitute Attorney, the Office of the Public Guardian and Trustee and the various institutions where the Attorney conducted business on behalf of the Grantor;
• the Grantor signs a new Power of Attorney;
• the Grantor revokes or cancels in writing;
• the end of a certain time period as stated in the Power of Attorney, if any.

Please feel free to contact us by phone at (613) 836-9915, ext. 0 to book an appointment or for more information.

Copyright © 1999-2003, Donna S.M. Neff
Reproduction of this Web page is only permitted with written authorization by the author. The information in this brochure is not intended to be legal advice. Please consult a lawyer if you have questions.