DUTIES AND RESPONSIBILITIES OF ATTORNEY
Who may act as attorney
You may name one or more of the following persons as an attorney:
- an individual, other than an individual who
- provides personal care or health care services to the adult for compensation, or
- is an employee of a facility in which the adult resides and through which the adult receives personal care or health care services;
- the Public Guardian and Trustee;
- a financial institution authorized to carry on trust business under the Financial Institutions Act.
However, your spouse or near relative who receives compensation for providing you personal care or health care services may be named as your attorney.
If you name someone under the age of 19 as your attorney, the individual must not act as attorney until that individual is an adult.
If you name more than one attorney, you may assign each of them a different area of authority, or all or part of the same area of authority. If all or part of the same area of authority is assigned to more than one of your attorneys, the attorneys must act unanimously, unless you:
- describe the circumstances in which your attorneys need not act unanimously;
- set out how a conflict between your attorneys is to be resolved;
- authorize one of your attorneys to act only as an alternate attorney and sets out
- the circumstances in which the alternate is authorized to act in place of the attorney (for example, if the attorney is unwilling to act, dies or is for any other reason unable to act) and
- the limits or conditions, if any, on the exercise of authority by the alternate.
Duties of attorney
An attorney must act honestly and in good faith; exercise the care, diligence and skill of a reasonably prudent person; act within the authority given in the enduring power of attorney and under any applicable law, and keep certain records and produce those records for inspection and copying at your request.
When managing and making decisions about your financial affairs, your attorney must act in your best interests, taking into account your current wishes, known beliefs and values, and any directions you give to the attorney in your enduring power of attorney.
An attorney must do all of the following:
- to the extent reasonable, give priority when managing your financial affairs to meeting your personal care and health care needs;
- unless the enduring power of attorney states otherwise, invest your property only in accordance with the Trustee Act;
- to the extent reasonable, foster your independence and encourage your involvement in any decision-making that affects you;
- not dispose of property that your attorney knows is subject to a specific testamentary gift in your Will, except if the disposition is necessary to comply with your attorney’s duties;
- to the extent reasonable, keep your personal effects at your disposal.
Your attorney must keep your property separate from his or her own property. However, unless the enduring power of attorney states otherwise, this does not apply to property that is jointly owned by you and your attorney as joint tenants.
Your attorney may make a gift or loan, or charitable gift, from your property if your enduring power of attorney permits your attorney to do so or if
- you will have sufficient property remaining to meet your personal care and health care needs and the need of your dependants, and to satisfy your other legal obligations, if any,
- you, when capable, made gifts or loans, or charitable gifts, of that nature, and
- the total value of all gifts, loans and charitable gifts in a year is equal to or less than a prescribed value (the lesser of 10% of your taxable income for the previous year or $5000).
An attorney may receive a gift or loan from you if the enduring power of attorney permits.
Permission for your attorney to make a gift or loan must be express, and may be in relation to a specific gift or loan, or charitable gift, or to gifts or loans, or charitable gifts, generally.
Your attorney may retain the services of a qualified person to assist him or her in doing anything you have authorized the attorney to do.
Attorney must not make a will for adult
Your attorney must not make or change your Will. Any Will or change to your Will that is made by your attorney has no force or effect.
Your attorney may, in an instrument other than a Will, change your beneficiary designation if authorized by a court or create a new beneficiary designation in certain limited circumstances.
Liability of attorney
If your attorney acts in in accordance with his or her duties, your attorney is not liable for any loss or damage to your financial affairs.
No delegation by attorney
Unless your enduring power of attorney states otherwise, your attorney must not delegate any decision-making authority. However, unless the enduring power of attorney states otherwise, your attorney may delegate all or part of their authority in relation to investment matters to a qualified investment specialist, including a mutual fund manager.
Payment and expenses of attorney
Your attorney must not be compensated for acting as your attorney unless your enduring power of attorney expressly authorizes the compensation and sets the amount or rate. Your attorney may be reimbursed from your property for reasonable expenses properly incurred.
Resignation of attorney
Your attorney may resign by giving written notice to you and any other attorneys named. If you are incapable of making decisions at the time your attorney resigns, the attorney must give written notice of their resignation to your spouse, near relative or close friend.
The resignation of your attorney is effective when notice has been given or on a later date specified in the notice.
When authority of attorney is suspended or ends
The authority of your attorney is suspended in any circumstances set out in an enduring power of attorney.
The authority of your attorney will also ends
- if your enduring power of attorney is terminated,
- if the provisions of your enduring power of attorney that give authority to your attorney are revoked,
- if your attorney resigns or
- if your attorney
- is your spouse and your marriage or marriage-like relationship ends unless your enduring power of attorney states that the authority of your attorney is to continue regardless of whether the marriage or marriage-like relationship ends,
- becomes incapable or dies,
- is bankrupt,
- is a corporation and the corporation dissolves, winds up or ceases to carry on business, or
- is convicted of a prescribed offence or an offence in which you were the victim.
You should note that a common-law relationship ends when the parties to the relationship stop cohabiting with each other, with the intention of ending the relationship.
If the authority of an attorney ends, any remaining attorneys may continue to act unless the enduring power of attorney states otherwise.
Anything lawfully done by your attorney on your behalf, including making an agreement, remains binding on you after the authority of your attorney ends.
The information provided on this website is merely an informative guide and should not be relied upon for legal advice. It is intended to provide general information only. It is recommended that you see a lawyer about your particular legal situation and request legal advice.
©Avery Law Office, September 2011