Canada: The Accountability Of A Power Of Attorney: Preventing And Detecting Financial And Personal Abuse

For many different reasons, a person may decide to appoint a power of attorney to manage their personal and/or property affairs. In doing so, they can limit the powers granted or the attorney's powers can be without restriction. A power of attorney can also be enduring (so that it continues even if the grantor loses capacity). It can be springing (so that it takes effect immediately) or it can be contingent (requiring something to occur for it to take effect, e.g., an incapacity assessment from two doctors). For whatever reason, it is often practical for people to have a power of attorney acting on their behalf at some point in their lifetime.

When someone acts as a power of attorney, the attorney does not act without accountability for their actions. In Saskatchewan, some of those obligations, rights and expectations are articulated in The Powers of Attorney Act, 2002. In exercising their powers, a power of attorney must do so honestly, in good faith, in the best interests of the grantor and with the care that could reasonably be expected of a person of the attorney's experience and expertise.¹

An enduring power of attorney is also presumed unable to make a gift that exceeds $1,000, unless their powers are further expanded by the power of attorney document or the court otherwise approves it.²

Perhaps most significantly, the power of attorney is required to account for their actions as personal and property attorney if so requested by the relevant party. If the person who granted the power of attorney still has capacity, then the right to ask and receive an accounting belongs to the person whose affairs are being managed. If the person loses capacity, then other interested persons can request an accounting, such as an adult family member. If the power of attorney refuses or otherwise fails to provide an accounting, then the Public Guardian and Trustee may be prepared to direct the attorney to account.

When the grantor of the power of attorney dies, the authority under the power of attorney terminates immediately. A power of attorney can also be terminated by court order or by the grantor revoking it. For whatever reason, the termination of a power of attorney triggers a requirement to account for their acts within six months from the date that the authority terminates, subject to certain exceptions.³

If the attorney still fails to produce a satisfactory accounting, then a court application may be advisable.[4] If an accounting identifies questionable transactions or decisions, then the attorney may be held to account for those acts or omissions – this may occur through more informal means (such as settlement) or through court proceedings, up to and including a trial of the issues.

For both contentious and non-contentious accountings, enlisting the assistance of a lawyer well-versed prior to court proceedings can be very helpful. For more information on elder abuse and power of attorney accountings, including the application of the law, please consult the advice of one of our lawyers with expertise in the area.

Footnotes

1. The Powers of Attorney Act, 2002, SS 2002, c P-20.3, s 15.

2. The Powers of Attorney Act, 2002,ibid, s 16.1; The Powers of Attorney Regulations, SR 2004, c P-20.3, Reg 1, s 3.2

3. The Powers of Attorney Act, 2002, ibid, s 18.1

4. The Powers of Attorney Act, 2002, ibid, s 18.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.