If you have been named in a Continuing Power of Attorney for Property as an attorney for property (“attorney”), or have appointed an attorney for property to make decisions on your behalf (meaning you are a “grantor”), it is important that you understand the duties of an attorney for property.
The Substitute Decisions Act
It is not particularly easy to locate the duties of an attorney in the applicable statute, being the Substitute Decisions Act (“SDA”). Such duties are outlined as those of a guardian for property in section 32 of the SDA. After such duties are outlined, section 38 of the SDA confirms all such duties (except those related to a management plan) also apply to an attorney.
Overall an attorney is a fiduciary and must perform his or her duties diligently, with honesty, integrity and in good faith, for the benefit of the grantor. In determining whether a decision is for the grantor’s benefit, the guardian must consider the effect that a decision will have on the personal comfort or well-being of the grantor.
An attorney must also consult with the grantor’s attorney for personal care to manage the grantor’s property in a way that is consistent with the personal care decisions made by the attorney for personal care, except where such decisions’ adverse consequences to the grantor’s property would significantly outweigh the benefit to the grantor’s personal care.
As an attorney, one must explain what his or her duties are to the grantor. This duty is satisfied if the attorney explains a matter “to the best of his or her ability and in a manner that addresses the special needs of the person receiving the explanation, whether that person understands it or not” (per section 1(3) of the SDA). Moreover, the attorney must encourage the grantor to participate in the attorney’s decisions, to the best of the grantor’s abilities. The attorney must also seek to foster regular personal contact between the grantor and his or her supportive family members and friends, in addition to consulting with such people with whom the grantor is in regular personal contact.
Finally, an attorney must keep accounts of all transactions involving the grantor’s property.
Understanding the Capacity of a Grantor
It is important that both attorneys and grantors are mindful of the above-noted obligations. There may be times where an attorney acts at the request of the grantor who wants assistance with managing his or her property not because the grantor is mentally incapable but for convenience purposes (i.e. because the grantor’s physical limitations make it easier for his or her attorney to complete tasks like going to the bank for the grantor). Of course, an attorney may also need to act not at the request of the grantor for convenience purposes but because the grantor is incapable. How these duties are explained to a grantor and the degree to which the grantor participates in decision making will vary depending on the level of capacity (or lack thereof) of a grantor. It is crucial that an attorney for property is cognizant of this so that he or she can properly fulfill his or her duties.
If you have been appointed as an attorney, or are a grantor and have questions about your duties or those of your appointed attorney, we are happy to answer such questions at Mills & Mills LLP. You can reach us at 416-863-0125 or online.