5 things that everyone should know before acting under a power of attorney
5 Things that
Know Before Acting
Under a Power of
Scope of the Attorneyship
A grantor may provide an attorney with full control over personal care and
financial decision making. In such a case, an attorney can do anything that
the grantor could have done while capable, except for executing a new will.
However, the role may also be limited in scope and/or duration.
It should be known whether there are any restrictions to the authority being
granted by the Power of Attorney before an attorney begins acting.
Duties of an Attorney
An attorney owes a fiduciary duty to a grantor. The attorney is required to
act with utmost good faith when assisting the person who has appointed
him/her. All decisions must be made in consideration of the best interests of
the incapable person. An attorney is expected to manage a grantor's affairs
with the same care, diligence, and care that one would exercise in the
administration of his/her own affairs.
One of the most fundamental duties of an attorney is maintaining complete
records (with supporting vouchers) with respect to all decisions and
transactions made on behalf of the grantor. An attorney may be compelled
to pass his/her accounts, a process whereby the Court audits records
prepared and filed in a certain format. An application to pass accounts
generally results in a decision by the Court, either approving or criticizing the
administration of the grantor's affairs.
An attorney for property is generally entitled to reasonable compensation.
The Power of Attorney may specify how the compensation to which an
attorney is entitled for assisting the grantor is to be calculated. In some
circumstances, however, the Power of Attorney may state that an attorney is
not entitled to any compensation.
When a Power of Attorney is silent on the issue of compensation, the
compensation to which an attorney for property is entitled is fixed by a
Regulation to the Substitute Decisions Act. In order to receive
compensation on a greater scale, court approval may be required.
If an attorney is receiving compensation for the management of property,
he/she will be held to a higher standard of care than an attorney who is not
That the Power of Attorney is Effective
Before an attorney begins acting, he/she should take time to review the
Power of Attorney appointing him/her. If the attorney is uncertain about the
meaning of any part of the document, a lawyer should be consulted. If the
attorney does not have the original copy of the Power of Attorney, he/she
should take steps to determine where the original document is located and
ensure that it is safe and accessible.
After a review of the Power of Attorney, it should be confirmed that the
conditions upon which the attorney is to become authorized to act have been
Finally, in order for the Power of Attorney to be effective, it is important that
the grantor did not execute a later Power of Attorney document that revoked
or altered the attorney's appointment in a prior document. Inquiries should
be made to determine whether other Powers of Attorney executed by the
The Option of Resignation
The role of an attorney is not one that should be taken lightly. In some
situations, a person appointed as attorney may not want to take on the role.
If a person is unwilling to act as attorney, he/she should obtain legal
assistance in resigning from the appointment before he/she begins acting on
the grantor's behalf.
After an attorney begins acting, it becomes more difficult to walk away from
the appointment and a Court Order may be required to remove an attorney
from continued obligations.