The role, powers and obligations of an attorney for property are set out by statute (Substitute Decisions Act, 1992) as interpreted by the courts (called common law).
Purpose
A Continuing Power of Attorney for Property is signed by an individual when they are capable and appoints a person (or persons) to manage their property (including day-to-day finances, real property etc.) if they become incapable or unable of managing their property themselves. A power of attorney for property is not the same as a power of attorney for personal care. An attorney for personal care only has authority to make decisions with respect to the grantor’s personal care and does not have the authority to deal with the grantor’s property.
Passing control of the management and decision making authority to an attorney does not, however, mean transferring ownership of the assets or liabilities; ownership legally remain with, and should remain in the name of the grantor or incapable person.
Authority
An attorney for property is allowed do on the grantor’s behalf anything the grantor could do if capable, except make a Will. This means for example: pay bills, pay income taxes, maintain or sell real property, apply for government benefits – anything and everything except make a Will or anything that is considered similar to making a Will such as naming a beneficiary to receive a death benefit on an asset such as a registered investment.
The Attorney for Property obtains authority to deal with the person’s property in accordance with the terms of the document (the power of attorney for property). An Attorney’s power can be limited by restrictions or wishes of the grantor and some powers of attorney require the grantor be found incapable of managing property by a qualified capacity assessor prior to the attorney having the authority to act.
Some attorneys may act on behalf of the grantor while the grantor is capable for the convenience of the grantor and some may act only when the grantor becomes incapable.
When attorneys are appointed jointly they must act together and make all decisions unanimously. One attorney does not have more authority than the other.
A power of attorney for property and the authority granted under it to deal with the grantor’s property is only valid during the grantor’s lifetime and expires upon their death.
Responsibilities
The attorney is a fiduciary has duties and obligations to ensure diligence and honesty and that all actions taken are for the grantor’s benefit.
Attorneys have an obligation to act honestly and in a manner consistent with the expresses wishes of the grantor. They have a duty to manage the person’s property for their benefit and to ensure expenditures are appropriate.
Attorneys must keep records of all transactions they undertake on behalf of the grantor with regards to the grantor’s property. The attorney must also not comingle their personal assets with the assets of the grantor.
The Attorney has an obligation to maintain the grantor’s confidentiality and is not permitted to disclose information about the grantor’s property or records unless required to do so in order to carry out the transaction or to carry out his or her duties as attorney.
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