Being an Attorney Under an Enduring Power of Attorney – The time has come: where do I begin?

The time has come: where do I begin?

Checklist: 10 steps to take upon the incapacity of the donor

1. Locate the original Enduring Power of Attorney and read it as soon as possible.

Many people keep their original Enduring Power of Attorney in a safety deposit box. To look in the safety deposit box, phone the bank and make an appointment. Take the key, your copy of the EPA and your own identification. Tell the manager of the financial institution that you are the Attorney and are looking for the original EPA. If you can’t find the key, the box can be drilled open for a charge. If the Enduring Power of Attorney is there and names you as Attorney, the bank should let you take the document. If they don’t, you should seek legal advice.

Some people leave the Enduring Power of Attorney with their lawyer. Problems can arise if they have not kept in touch with the lawyer or notary, who may have died, moved or sold the business.

Once you have the original, you may wish to have numerous notarized copies made, as most financial institutions will want to see (and often keep) a notarized or certified copy for their records.

2. Be sure that there is a proper Declaration of Incapacity.

If the Donor has chosen that the EPA will come into effect when they lose mental capacity, a Declaration of Incapacity document will have to be signed when that occurs. This Declaration conclusively confirms that for legal purposes, the Donor no longer has mental capacity. These forms are available from hospitals, care facilities and doctors.

The EPA can (but does not have to) say who is to sign the Declaration of Incapacity. If it does, then whoever is named must sign the Declaration. The Attorney under the EPA can be the person named to make this decision. The written Declaration is regarded as conclusive that the specified contingency has occurred. If the EPA does not say who is to make the Declaration, then two medical practitioners must complete the form.

You will need the original Declaration of Incapacity. If you are involved with completing this document, ensure that all portions are clearly filled in, it is dated and signed by either the persons named in the EPA or by two qualified medical practitioners. Check to be sure that the document is consistent with any other provisions of the EPA.

3. Immediately inform everyone who needs to know.

When a Declaration of Incapacity is issued, inform all the people who need to be notified, in writing. The Enduring Power of Attorney may provide a list of people to inform or the Donor may have told you verbally. Keeping everyone informed helps develop confidence in your actions and may help avoid later complications.

4. Find out details about any Personal Directive the Donor may have made.

There are several reasons for doing this.

Assuming you are not the Agent under the Personal Directive, you may want to start talking immediately with this person about personal and health issues affecting the Donor.

For example, if the Donor needs to be placed in a care facility, the personal aspects of that decision will fall to the Agent, but since you are responsible for the finances, you will likely want input into the decision.

Even if immediate teamwork is not required, it will likely be required at some point. Start building a working relationship as soon as your responsibility begins.

Once you have the original Enduring Power of Attorney you may wish to have numerous notarized copies made, as most financial institutions will want to see (and often keep) a notarized or certified copy for their records.

5. Find out details about the Donor’s Will.

There are two main reasons for doing this.

  • If you are also the Personal Representative appointed under the Will, you will want to know if there are any potential conflict issues with respect to your roles and actions and address those immediately.
  • Even if you are not the Personal Representative appointed under the Will, the Will (and/or associated documentation) may contain information that can help you in your decision-making while the Donor is still alive.

    Examples:

    • If there are family disputes, it is best to find out about them and start to address them as soon as possible.
    • If, in his Will, a Donor left a family heirloom to his sister, you can attempt to ensure that the heirloom is not sold unless and until it is absolutely necessary for the care and best interests of the Donor. If you did not know the details of the Will, that heirloom might have been the first item you liquidated.

6. Start to make a list of the Donor’s assets, payments, debts, and related issues.

Determine the Donor’s assets and liabilities by going through the Donor’s important documents and contacting financial institutions, insurance companies, brokers, employers and RRSP or RRIF trustees for information. Such a list is very effective for your own organization.

Specifically, make a list of:

  • real property (the person’s home, cottage, or other land holdings);
  • personal property such as jewellery, furniture, vehicles;
  • liquid assets such as cash, bank accounts, mutual funds, stocks and bonds etc. Be sure to include certificate numbers, registration and maturity dates;
  • any assets owned in joint tenancy or tenancy in common;
  • all debts, including monthly payments, financial responsibilities to dependants (such as spousal support or child support), including the dates by which they must be paid;
  • any business assets and debts; and
  • any other responsibilities (for example: if the Donor was an Attorney for someone else).

You should attempt to find out the value of the Donor’s assets. For investments you can contact an investment advisor. For real estate, you can start with the Property Assessment Notice issued by the municipality. You could also consult a real estate agent. For any hard to value assets, you may hire an appraiser.

Specific tasks under this heading can include:

  • if the Donor was a victim of a workplace accident or a crime, looking into any financial compensation that may result (for example: Workers’ Compensation, or victims of crime fund);
  • ensuring all financial institutions and other interested parties know and have proof of your status as Attorney;
  • contacting current or previous employers to determine any benefits or insurance proceeds that may be available (such as disability);
  • reviewing tax returns from past years and filing any previous outstanding tax returns;
  • acquiring all title documents for property, mortgages, share certificates, bonds, debentures and guaranteed investment certificates;
  • obtaining evaluations of real estate, securities, automobiles, and any personal property;
  • reviewing insurance to determine adequacy of coverage and make changes if deemed necessary; and
  • making sure all legitimate debts are, or continue to be, paid.

7. Protect the assets.

As Attorney, you are responsible for protecting the Donor’s assets for future use in his or her care and best interests.

For example, you may want to make sure objects are insured and safe. You may wish to place valuable papers, cash, or jewellery in a safety deposit box. If the person owned a business, you will need to arrange for its ongoing and proper management.

Common steps to protect the assets include:

  • gaining access to, and listing the contents of, the Donor’s safety deposit box(es);
  • arranging for safe storage of valuable items;
  • collecting any monies owed to the Donor;
  • gaining access to the Donor’s motor vehicle and ensuring it is stored in a safe place until you decide what to do with it;
  • gaining access to the Donor’s residence to take care of pets, make sure appliances are off, take in mail, mow the lawn, collect the newspapers and related tasks;
  • if the Donor was in a rental unit, and if appropriate, making arrangements with the landlord for the removal of the Donor’s property (or terminating the lease or arranging a sub-lease, depending on the circumstances);
  • if appropriate, canceling the Donor’s driver’s licence, magazine and newspaper subscriptions, cable television, club memberships, telephone and requesting refunds;
  • obtaining Canadian Pension Plan, or other pension plan, and/or disability payments, and when the time comes, obtaining Old Age Security and Registered Retirement Income Fund (RRIF) payments;
  • ensuring there is enough insurance coverage;
  • obtaining information on outstanding credit card balances and canceling cards (if appropriate);
  • contacting Canada Post to reroute the Donor’s mail; and
  • send change of address forms to organizations the Donor deals with.

8. Deal with the assets.

Once you are ready, you must begin to deal with the assets. In some instances, you will want to retain and/or invest assets. In other instances, you may want to liquidate assets and use the proceeds for the care of the Donor. For real estate assets held in joint tenancy or tenancy in common, you will have to consult and/or negotiate with the co-owner. Remember that you must always act in the best interests of the Donor, and use the assets for the Donor’s support and care. If you are uncertain with respect to any of these matters, you can always seek the advice of a lawyer or apply to the court for advice and direction.

As Attorney, you are responsible for protecting the Donor’s assets for future use in his or her care and best interests.

9. Keep proper records.

One of your duties as Attorney is to keep complete and detailed financial records. There are numerous reasons for this.

  • Under the terms of the Enduring Power of Attorney, you may have to provide a financial report to the Donor or to other interested parties on a regular basis.
  • Even if the EPA does not require regular reporting to anyone, the Donor can ask for a financial report at any time, and, by law, you are required to provide it.
  • If someone else has evidence suggesting mismanagement or theft or believes that you are mentally incapable of being an Attorney, they may ask the court to review your accounts and records. This process is called a “passing of accounts”. They may also report the matter to the Public Trustee. This Office investigates claims involving a mentally incapable person who is believed to be at serious financial risk.
  • Regardless of the length or complexity of the task, keeping organized will help make your job easier. This in turn will amount to less stress on you.

Keeping complete and detailed accounts includes keeping lists of:

  • the Donor’s assets as of the date of the Attorney’s first transaction;
  • assets acquired and disposed of and the date and particulars of each transaction;
  • receipts and disbursements and the date and particulars of each transaction;
  • investments bought and sold and the date and particulars of each transaction;
  • the Donor’s liabilities as of the date of the Attorney’s first transaction;
  • liabilities incurred and paid and the date and particulars of each transaction;
  • expenses and payments taken by the Attorney and how they were calculated;
  • any court orders relating to the Attorney’s authority;

You should keep these records until:

  • you cease to act for the Donor and you receive a release from someone authorized to give it,
  • another person acquires authority to manage the Donor’s property and you give the records to that person; or
  • if the Donor dies, giving the records to the Donor’s Personal Representative.

Keep people informed.

You may be dealing with the Donor’s loved ones and caregivers for a short time or many years. Everyone will have their own ideas about the best interests of the Donor and what the Donor would or would not have wanted. Interpersonal problems may arise.

To help prevent conflicts:

  • consider providing the closest loved ones with a copy of the Enduring Power of Attorney (unless it says otherwise).
  • keep them informed of big decisions and the reasons for them. Often, giving a warning or an explanation can help lessen disagreement. Keeping all the affected loved ones informed also helps develop confidence in your actions.
  • remain aware of any dispute between loved ones, as this may help you put a stop to issues before they arise.
  • show respect and consideration for the opinions and thoughts of others. You are ultimately responsible and you must make the decisions that your duty requires. However, a positive attitude towards others can sometimes help with decisions that you know might be met with some resistance.

Under the terms of the Enduring Power of Attorney, you may have to provide a financial report to the Donor or the other interested parties on a regular basis.

You should NOT rely on this webpage for legal advice. It provides general information on Alberta law only. December 2016.
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