Should I agree to the job?
What’s involved in being an Attorney under an Enduring Power of Attorney?
What is an Enduring Power of Attorney (EPA)?
An Enduring Power of Attorney is a legal document created by an adult individual called a “Donor”. It names a person (the “Attorney”) who will act on behalf of the Donor concerning his or her financial matters. It must contain a statement that its terms will continue notwithstanding any mental incapacity or infirmity of the Donor that occurs after the document is made, or that it is to take effect when something specific happens in the future. Usually the Donor states that the Power of Attorney comes into effect when the Donor loses mental capacity, but the Donor could instead specify a date or any other future event they choose.
What is an Attorney?
An Attorney is the person named in an Enduring Power of Attorney to carry out its directions. An Attorney has the right, while the Donor is still alive, to act on behalf of the Donor with respect to his or her financial affairs. This can include paying bills, depositing and investing money, and even selling the Donor’s house if the EPA gives the Attorney that power. Sometimes the Attorney will act along with the Donor. Sometimes the Attorney will act alone.
An EPA may also name Co-Attorneys (also called Joint Attorneys) who will work together. Unless the EPA contains wording that limits the Attorney’s powers, he or she can do anything that the Donor could legally do with regard to the Donor’s financial affairs.
An Attorney does not make decisions about health care – for that, one needs a separate document, called a Personal Directive.
Who can be an Attorney?
Any adult can be an Attorney. An Attorney does not have to be a lawyer. You can be an Attorney even if you are a beneficiary under the Donor’s will. An Attorney should:
- be honest and trustworthy;
- be capable of doing the job (he or she does not need to be an expert but should be someone who can do a good job of handling financial affairs);
- have the time and willingness to do the job.
It is convenient, but not necessary, for the Attorney to live in the same province as the donor.
Note, an Attorney cannot be a witness to the signing of the Enduring Power of Attorney that makes them the Attorney.
How difficult is it to be an Attorney?
The task can be fairly simple if the Donor has little property and few financial obligations.
However, the job of Attorney may be considerably more complicated if:
- the Donor owns a business;
- the Donor has a lot of investments and debts;
- the Donor has minor children; or
- the Power of Attorney is challenged by someone.
If any of these things are true, being an Attorney can be a big job requiring lots of time, energy, careful attention to detail and diplomacy. The amount of work involved will also depend on whether you are the sole Attorney or whether the Donor has named one or more Co-Attorneys to work with you.
What are the duties of an Attorney under an Enduring Power of Attorney?
An Attorney under an Enduring Power of Attorney must always act to protect the best interests of the Donor. He or she is responsible for such things as:
- managing the Donor’s financial assets and liabilities for what may turn out to be a lengthy period of time;
- using the Donor’s assets first for the Donor’s support and care. Then, if assets are available, for the support of any dependents of the Donor;
- paying the Donor’s bills;
- preparing and submitting the Donor’s tax returns;
- maintaining trusts for dependent children, if any;
- dealing with legal and accounting matters;
- consulting with the Donor, for so long as the Donor is mentally capable, with those who take care of the Donor, and with the Donor’s family and friends;
- making gifts or loans to relatives, and gifts to charity based on the Donor’s previous practice and intentions, if the Enduring Power of Attorney specifically gives this power;
- keeping records of all the transactions made on behalf of the Donor;
- if the Donor dies, to give the records to the Donor’s Personal Representative as named in their Will; and
- if required, to apply to the court for advice and direction regarding any of these matters.
Can I accept the job of being an Attorney if I am receiving a gift under the Donor’s Will?
Yes. An Attorney can be a beneficiary under the Donor’s Will. Also, if you are the Donor’s spouse, adult interdependent partner or dependent child, you may use your authority for your own maintenance, education and benefit. However, you must not let your entitlement under the Will or Enduring Power of Attorney cloud your judgment as to the Donor’s best interests while the Donor is still alive.
For example, if you are to receive a cash bequest under the Will, you cannot choose to set aside those funds simply to ensure that you will receive them once the Donor dies. You must always act in the Donor’s best interests.
Will I be paid for being an Attorney?
It is possible to be paid as an Attorney under an Enduring Power of Attorney, but it does not happen in all cases. Often an Attorney does not accept a fee if the Attorney is a spouse, adult interdependent partner, family member, or close friend of the Donor.
Sometimes, an Enduring Power of Attorney states an amount that is to be paid to the Attorney as a fee. If it does, the stated amount is the maximum the Attorney can receive. If the EPA does not list any fee, the Attorney may apply to the court for “fair and reasonable” payment. If there is more than one Attorney, the fee is split, but not necessarily equally. It depends on who does most of the work.
Any expenses the Attorney has while completing his or her duties are paid for out of the Donor’s resources. Typical expenses include photocopying, parking, postage and long distance phone calls.
If I agree to be an Attorney, can I change my mind if circumstances change?
If the Donor still has capacity, you can change your mind at any time. Let the Donor know as soon as possible so that she or he can make a new or amended Enduring Power of Attorney.
You can also resign later, after the Donor has lost capacity. This is called “renouncing”. You must ask the court for permission to renounce. If there is a Co-Attorney, she or he can take over. If there is no Co-Attorney but the Enduring Power of Attorney names an Alternate Attorney, the court can appoint that person to take your place. If there is no Co-Attorney or Alternate Attorney named in the EPA, then the EPA will no longer be in effect. To manage the Donor’s finances, someone will have to apply to the court to become a Trustee. Different rules apply to this process and legal advice should be obtained.
Any adult can be an Attorney. An Attorney does not have to be a lawyer. You can be an Attorney even if you are a beneficiary under the Donor’s will.