So you’ve been appointed an Attorney, but what does that really mean? This document sets out some of the basic “dos and don’ts” of being an Attorney which are worth considering prior to agreeing to accept the appointment.

What is an Attorney?

An Attorney is an individual who has been appointed by another person (the “Adult”) to make their financial and legal decisions.

What must you do?
– Manage the Adult’s financial affairs and bank accounts including paying any bills, depositing cheques, etc. if they are incapable
– Manage the Adult’s investments, real estate and other property, if they are incapable
– Keep the Adult’s money and other property separate from your own money and property
– Keep records of all the transactions involving the money or property of the Adult
– Produce records of those transactions to the Adult, or in the event of their death, to the Personal Representative
– Keep the Adult’s personal information private (except as necessary to carry out your duties)
– Determine if the Adult has a Will and what its contents are
– Review and preserve any other records or other estate planning documents of the Adult, if the Adult becomes incapacitated (Estate planning documents may now include emails, hand written notes, videos etc. Advice should be sought if you have questions about any record)
– To the extent that the Adult is capable of understanding, you should consult with the Adult and keep him or her in the loop as much as possible
– Above all, act honestly and in good faith and always in the best interest of the Adult

What may you do?
– Consult with supportive family members or friends
– Ask for help or hire professionals to obtain advice and assist with carrying out your responsibilities (i.e. hire an accountant to assist with filing the Adult’s taxes)
– Be refunded for the reasonable expenses incurred in the course of carrying out your duties (remember to document them and keep receipts)

What can’t you do?
– Place yourself in a conflict with the interests of the Adult
– Make medical or health care decisions for the Adult
– Anything you are unauthorized to do under the Enduring Power of Attorney (even if you do it in good faith)
– Invest the Adult’s property in any investment not authorized by the Trustee Act, unless specifically authorized under the Enduring Power of Attorney
– Receive payment for acting as Attorney (except for reimbursement of reasonable expenses)
– Dispose of property that you know is the subject of a specific gift in the Adult’s Will
– Use information obtained through your role for personal gain
– Accept the appointment of Attorney if you provide, or work at a facility which provides, personal or health care to the Adult (unless you are that Adult’s child, parent or spouse)

Will you be liable for mistakes?
If you follow the duties set out in the Enduring Power of Attorney and under sections 19(1) of the Power of Attorney Act you will not be personally liable (legally responsible) for any loss or damage to the Adult’s financial affairs.

You may be liable, however for damages that arise as a result of your failure to properly discharge your obligations, and you may be required to compensate the Adult, or potentially even the beneficiaries, out of your own pocket.

This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250)448-2637

Una Gabie: una@touchstonelawgroup.com

Jennette Vopicka: jennette@touchstonelawgroup.com

Danielle (Dani) Brito: danielle@touchstonelawgroup.com