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Continuing Power of Attorney for Property: Duties of the Attorney.

A continuing Power of Attorney for Property is an extremely powerful document that allows the appointed guardian to do on the incapable person’s behalf anything in respect of property that the person could do if capable, except make a will.

Uncle Ben explains it best with his iconic Spider-Man comic books quote: “With great power comes great responsibility”

Whether you are person that is considering granting a Continuing Power of Attorney for Property (“POA”) or an attorney that has already been granted these powers, it is important to understand the responsibilities that go along with these immense powers.

In Ontario, it is the Substitute Decisions Act that governs POAs. This Act and its Regulations set very strict requirements for an attorney acting under a POA.

The statute makes it clear that an attorney is a fiduciary whose powers and duties shall be exercised and performed diligently, with honest and integrity and in good faith, for the incapable person’s benefit.

The Regulations to the Substitute Decisions Act set very stringent requirements for the accounts and forms that an attorney must keep. An attorney must maintain forms and accounts that include the following

  1. A list of all the incapable person’s assets as of the date of the first transaction by the attorney on the incapable person’s behalf, including real property, money, securities, investments, motor vehicles and other personal property;

  2. An ongoing list of assets acquired and disposed of on behalf of the incapable person, including the date of and reason for the acquisition or disposition and from or to whom the asset is acquired or disposed;

  3. An ongoing list of all money received on behalf of the incapable person, including the amount, date, from whom it was received, the reason for the payment and the particulars of the account into which it was deposited;

  4. An ongoing list of all money paid out on behalf of the incapable person, including the amount, date, purpose of the payment and to whom it was paid;

  5. An ongoing list of all investments made on behalf of the incapable person, including the amount, date, interest rate and type of investment purchased or redeemed;

  6. A list of all the incapable person’s liabilities as of the date of the first transaction by the attorney on the incapable person’s behalf;

  7. An ongoing list of liabilities incurred and discharged on behalf of the incapable person, including the date, nature of and reason for the liability being incurred or discharged;

  8. An ongoing list of all compensation taken by the attorney, if any, including the amount, date and method of calculation;

  9. A list of the assets, and value of each, used to calculate the attorney’s care and management fee, if any.

If you considering granting a POA, it is very important that you familiarize yourself with the powers and responsibilities that come with acting as an attorney. Be honest with yourself about who you choose; ask yourself if the intended person has the necessary skills and desire to satisfy all of the requirements. This will help you to choose the right person for the job.

If you have been appointed attorney under a POA, it is very important to familiarize yourself with the powers and responsibilities that come from accepting this position. Be honest with yourself – ask yourself if you have the necessary skills and desire to satisfy all of the requirements? Once you start acting under a POA, you are automatically governed by the Substitute Decisions Act.

In this post, I used the short form “POA” to refer to Continuing Power of Attorney for Property. It is important to point out that there are several different kinds of recognized Powers of Attorney in Ontario.

If you have any questions about appointing an attorney or acting as an attorney, please do not hesitate to contact my office. The initial consultation is always free.

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