The standard of care required of an attorney for property to account differs depending on whether the grantor of the power of attorney is capable or not.
The record-keeping requirements of an attorney for property need not rise to a standard of perfection, whether the grantor is capable or not. However, an attorney acting on behalf of a grantor who is mentally capable at all material times is held to a different standard than that of an attorney acting on behalf of an incapable person.
When the grantor is mentally capable at the relevant time, the courts will consider the credibility of the attorney in respect of his or her actions during that period. The grantor must lead evidence to show that misappropriation by the attorney has taken place for the attorney to have failed to meet the standard to account. Even when an attorney is unable to account for certain withdrawals or expenditures made on behalf of the grantor, the court may choose not to draw an adverse inference if it finds the attorney to be credible.
In Fair v. Campbell Estate, the court confirmed the different standard for a mentally capable grantor. The court noted that “where the grantor is sui juris, the imposition of a duty to account can cast an impossible burden on the attorney. He could be required to account for decisions over which he had no influence and for transactions that he did not implement.” The court held that while the Substitute Decisions Act and its Regulations contemplate the power of a competent grantor to require his attorney to account, that is surely a necessary power to prevent abuse of authority by a negligent or dishonest attorney.
The court in Craig Estate v Craig Estate interpreted this statement as standing for the proposition that “the duty to account where the donor of a power of attorney is sui juris is quite different than if the attorney had been appointed guardian for a mental incompetent.” In that case, the Superior Court of Justice considered a situation in which the grantor of a POA was not incapable upon granting the POA but subsequently became so. During the period in which the attorney’s actions were being challenged, the donor was mentally capable. The court noted that as a result of the donor’s sui juris status, “there is only a limited requirement to account on the part of the [attorney].” On this point, the court further noted that the attorney had, in fact, been accounting to the donor while the latter was sui juris, and that the donor was also handling some of her assets in her own capacity.
The court highlighted the standard applicable to an attorney where the grantor is sui juris. The court held that “the onus on [the attorney] was to perform her duties with honesty, integrity and in good faith with the exercise of the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs”. Accordingly, the court in that case held that there must be a finding of “misfeasance […] and not just accounting difficulties” on the part of the attorney before it would intervene in the matter.