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.

We can help.

Related Posts

I Just Bought a Condominium . . . Now What?

A condominium is a type of legal ownership where the property is divided between privately owned units and common elements. Each unit owner owns the unit as well as a proportion of common elements, which includes such things as hallways, lobbies and elevators and there are also “exclusive use common property elements,” such as balconies,

Read More »

Challenges to Testamentary Documents

Quite often we hear about someone’s Will being challenged.  The most common grounds being: proper execution; knowledge and approval of the contents of the Will; fraud; lack of testamentary capacity; and undue influence and suspicious circumstances. A person who wishes to challenge a Will as being invalid must file a Notice of Objection with the

Read More »

Resolving Challenges to Testamentary Documents and other estate disputes

Sometimes estate disputes are inevitable given the family dynamics for the challenge to be made. A variety of mechanisms exist to resolve disputes arising over testamentary documents, such as informal settlement, mediation, and court. Informal Settlement   At any time, the matter can be resolved informally. Legal counsel may discuss the case and advise the parties

Read More »

Duties and Powers of an Attorney for Property

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 If a person is unable to look after or may need help with his or her own affairs such as banking, paying bills, buying necessary items, or

Read More »

Taking Advantage of the TFSA

The Tax Free Savings Account (TFSA) encourages Canadians to save money to meet financial goals and lifetime saving needs. No tax deduction is available for the contributions made, but all money withdrawn is tax-free and all investment income (e.g., interest, dividends, capital gains) can be generated without attracting tax or affecting the eligibility for federal

Read More »

Implications of appointing a non-resident Estate Trustee

Appointing an estate trustee who does not reside in Canada has several negative implications.  A non-resident estate trustee is required to post a bond (which is costly and adds delay), and he or she may not be eligible to make certain financial investments available to Canadian residents (e.g., stocks, bonds, Canada Savings Bonds). Even if

Read More »
Scroll to Top