If you have been appointed to act as an Attorney for a relative or friend, you should understand your duties in this important role. The duty to act begins with section 8 of the Power of Attorney Act.
Duty to act
(a) an attorney has acted in pursuance of an enduring power of attorney or has otherwise indicated acceptance of the appointment, and
(b) the enduring power of attorney has not been terminated, the attorney has, unless the enduring power of attorney provides otherwise, a duty to exercise the attorney’s powers to protect the donor’s interests during any period in which the attorney knows, or reasonably ought to know, that the donor is unable to make reasonable judgments in respect of matters relating to all or part of the donor’s estate.
The common law duties of attorneys are summarized in the 2010 decision in Taubner Estate(Re). “An attorney acting under a [power of attorney] is clearly in a fiduciary relationship that imposes the obligations and duties of a trustee upon the attorney”:
- putting the donor’s welfare first when taking any steps with respect to the donor’s property;
- taking the wishes of the donor into account;
- exercising the judgment and care that a person of “prudence, discretion and intelligence would exercise in the conduct of his or her own affairs”, as required by powers of attorney legislation; and
- handling the property in an impartial and even handed manner.
The Court also cited M. Jasmine Sweatman’s Guide to Powers of Attorney, with respect to a more detailed description of an attorney’s duties. In addition to any duties expressed in the instrument at common law, the attorney has the duty to:
a) stay within the scope of the authority delegated;
b) exercise reasonable care and skill in the performance of acts done on behalf of the donor (if acting gratuitously, the attorney is held to the standard of a typically prudent person managing his or her affairs; if being paid, the attorney is held to the standard applicable to a professional property or financial manager);
c) not make secret profits; and
d) cease to exercise the authority if the power of attorney is revoked.
Please contact us if you have any questions about the duties of an attorney, and we can provide use a more detailed list of your duties on request.