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Duties and Powers of a Property Attorney in Saskatchewan DUNNING PLACE Saskatchewan Ministry of Justice and Attorney General Duties and Powers of a Property Attorney The purpose of this booklet is to help a person who has been appointed a property attorney under an enduring power of attorney. It explains what this important role involves, what things the property attorney is allowed to do and what steps must be taken by the property attorney to meet his or her obligations to the grantor. This booklet may also be useful to others who are not property attorneys. For example, if you are considering agreeing to be the property attorney of a relative or friend, you should be fully aware of what the role involves. If you are a person working with an attorney, you may want to know what the attorney is allowed to do and what you can expect in your dealings with the attorney. The powers and duties of a property attorney are established by law. The Powers of Attorney Act (http://www.qp.gov.sk.ca/documents/ english/Statutes/Statutes/p20-3.pdf) and the Regulations (http://www.qp.gov.sk.ca/documents/english/Regulations/ Regulations/p20-3r1.pdf ) under that Act set out these powers and duties. This booklet is a summary and a guide, based on the law. It is not as comprehensive as the law itself. This booklet is not legal advice. If, after reading this booklet, you have questions or are uncertain about how to interpret the information, you should consult with a lawyer. 1 Property Attorney Contact Information There are many circumstances where a person may wish to give Public Guardian and Trustee Office someone the authority to manage their personal affairs and/or their 100 - 1871 Smith St. property matters. This can be accomplished by signing a power of Regina, Saskatchewan attorney. The person giving this authority is called a grantor and S4P 4W4 the person who is given the authority is called a property attorney. While the property attorney has the authority that is given in the Telephone: (306) 787-5424 power of attorney, the grantor also retains that authority. Toll Free: 1-877-787-5424 Fax: (306) 787-5065 In many cases, the power of attorney provides that it will continue Email: email@example.com after the grantor becomes incapable of making his or her own Web site: www.justice.gov.sk.ca/pgt decisions. This is called an enduring power of attorney. In those circumstances, the attorney will be solely responsible for making Office Hours: Monday through Friday, 8:00 a.m. to 5:00 p.m. decisions for the grantor. (Closed for the noon hour and holidays) The obligation of a property attorney who is acting in circumstances where the grantor no longer has the capacity to make decisions is a serious one. Almost every aspect of the grantor’s life is affected – directly or indirectly – by the property attorney’s actions. By performing the role diligently and sensitively, the attorney will give the grantor the most comfortable, enjoyable and safe life that the grantor can afford. On the other hand, extreme harm can result to the grantor and to others if the property attorney does not act diligently and honestly. Therefore, the highest standards of honesty, integrity and trust are demanded from the attorney. Passing control of a grantor’s income and assets to a property attorney does not mean that the attorney assumes ownership of the income and assets. Ownership remains in the name of the grantor. The property attorney is responsible for managing financial affairs in the best way possible for the grantor. 2 11 Confidentiality Authority It is expected you will not disclose any information contained in As a property attorney, you are allowed to do on the grantor’s behalf the accounts and records unless required to do so: anything in relation to his or her property that the person could do if • in order to make transactions on the grantor’s behalf; capable, except to make a will. Unless the power of attorney restricts you, you are allowed to do the following on the grantor’s behalf: • to fulfill your duties as a property attorney as requested by the • open and close bank accounts; grantor, or person named in the power of attorney or the Public Guardian and Trustee; or • receive pensions and other income; • by a Court. • apply for benefits or supplementary income to which the person is entitled; • deal with investments; You can produce copies of your records to: • collect debts; • the grantor; • pay bills; • a person named in the Power of Attorney; • buy goods and services; • the grantor’s personal attorney; and • start or defend law suits, if there are financial implications; • the Public Guardian and Trustee. • sell, store or dispose of personal belongings; and • maintain or sell a house or vehicle. This booklet has been provided to help a person who has been appointed as a property attorney under a power of attorney. While You are entitled to receive, from any person or business, it provides useful information about the role and responsibilities of information about the property that belongs to the grantor and an attorney, it is only a summary and it is not legal advice. If you copies of any documents signed by, or given to, the grantor. have specific questions about your own situation, you should speak A person who holds or controls the property is required to deliver to a lawyer or an accountant for advice to guide you. the property to you when you request that person to do so. For example, you may need to obtain the contents of the grantor’s safety deposit box to look for valuable papers like savings bonds or guaranteed investment certificates. You are entitled to obtain a copy of the person’s will. You do not have the authority to change a person’s will or make a new will for the grantor. 10 3 Responsibilities • an up-to-date list of all compensation that you charged, including the amount, date and method of calculation and a list of the You must keep the grantor’s financial accounts and transactions assets and the value of each asset used to calculate your fee; and completely separate from your own. You must never borrow or use the grantor’s money for yourself or your family and friends unless • an up-to-date list of the assets as of the date of completing your authorized by the power of attorney. accounts. (Form H in The Power of Attorney Regulations provides a form that can be used as a guide in preparing an You should consider the personal comfort or well-being of the accounting. It can be viewed at http://www.qp.gov.sk.ca/ grantor in determining whether any financial decision or documents/english/Regulations/Regulations/p20-3r1.pdf ) transaction is for the grantor’s benefit. The most important goal is to act in the best interests of and to maximize the quality of life of the grantor. It is also a good idea to keep copies of invoices and bills you have You must manage the property in a way that accommodates the paid on the person’s behalf, and cancelled cheques. You should decisions made about the grantor’s personal care. For example, if retain the accounts and records until: the person wants to live in a certain place and can afford it, you • another person is given the authority to manage the grantor’s should arrange to pay for this choice of residence. If the person property and you deliver the accounts and records to that person. wants to take a vacation and can afford it, you should arrange to This could be a new attorney or a property guardian appointed pay for it. However, there is one exception to this obligation. You by the Court; may make a financial decision that overrides a personal care • the grantor dies and you deliver the accounts and records to the decision if to do otherwise would result in negative consequences person with legal responsibility for the estate; with respect to property that heavily outweigh the personal care benefits of the decision. For example, the person may want to • you are discharged from your duties by the Court; remain living in his or her own house, but may require 24-hour • you are provided with a document called a release, relieving you care and not have enough money to pay for it without selling the of any further personal legal responsibility for your actions as an house. In that case, the need to sell the house in order to have attorney, signed by the grantor or a legal representative of the enough money to pay for the person’s care may heavily outweigh person’s estate, or a new attorney; the person’s wish to remain living in the house. • being the spouse of the grantor, the two of you separate with the You should try to inform the grantor of all your powers and duties, intention of ending your spousal relationship, or to the extent that the person is able to understand. • when you hand over the accounts and records, you should retain As the property attorney, you should encourage the grantor to photocopies in the event that someone questions you in the participate, to the best of his or her abilities, in your decisions future. about the property. 4 9 Keeping Records You should discuss the financial decisions and transactions you make, from time to time, with the grantor or family members and In addition to the accounts, you must keep the original power of friends designated in the power of attorney. You should also attorney that appointed you and any court orders that relate to the encourage personal contact between family members, caregivers, grantor’s property. and the grantor. You must make reasonable efforts to determine whether the grantor The records that you keep must include: has a will, and if so what is in the will. If the grantor’s will includes • a list of all of the grantor’s assets as of the date of your a gift of property, you should retain that property so that it may be commencing to act as property attorney. Assets include real gifted in accordance with the grantor’s will at death. You may need estate, money, securities, investments, motor vehicles and other to depart from this rule if selling the property is absolutely personal property; necessary for you to fulfill your duties to the grantor while he or she is alive. • an up-to-date list of all assets bought, sold or given as a gift on behalf of the grantor. Your list should include the date and reason for acquiring or disposing of the property and the name of Criminal Code of Canada the purchaser or seller to whom the asset was acquired or There are criminal code offences that apply to the conduct of disposed; property attorneys. • an up-to-date list of all money that you paid out or received on The offense of theft can apply where a person takes property behalf of the grantor, including all details associated with the without color of right. (Section 322) transaction, i.e. the date, reason, information about the account you withdrew from or deposited into, and the person with whom Everyone commits theft who, being entrusted with a power of you carried out the transaction; attorney for the sale or disposition of property, fraudulently sells or disposes of the property or converts the proceeds, to a purpose • an up-to-date list of all investments made on behalf of the other than that in the power of attorney. (Section 331) grantor, including amount, date, interest rate and type of investment; Everyone who, being a trustee of anything, converts property in contravention of the trust or converts property to a use not • an up-to-date list of all of the grantor’s liabilities (debts) as at the authorized by the trust, is guilty of an offense. (Section 336) date you commenced acting as attorney; • an up-to-date list of all liabilities that you have paid off or taken on, if any, on behalf of the grantor, including the date, the nature of the liability and the reason for its being discharged or incurred; 8 5 Expenditures Directions from Court As the property attorney, you are expected to make certain If any difficult questions about the management of the property expenditures from the grantor’s property, provided there is enough arise, you may apply to the Court for directions on how to resolve money, in the following order: the issue. The Court you apply to will be the Court of Queen’s 1. Expenditures that are necessary, within reason, for the support Bench for Saskatchewan. The Court will give you directions as to and care of the grantor; what it considers to be beneficial to the grantor. You will probably require the services of a lawyer to bring your application to Court. 2. If enough money remains, expenditures for the maintenance and education of the grantor’s spouse and dependants; and 3. If enough money remains, expenditures that are necessary to Compensation meet the grantor’s legal obligations. As an attorney, you may be paid for your work. The annual compensation that you are allowed can be paid out of the grantor’s funds. If you charge a fee, you must provide an annual accounting Discretionary Expenditures to the grantor or to the person named in the power of attorney but In addition to the expenditures listed above, you may, with the if no one is named, then to the most immediate family member utmost care, make the following expenditures: and the Public Guardian and Trustee. • gifts or loans to the grantor’s friends and relatives if the grantor previously indicated that he or she would make these gifts or Accounts loans. You should proceed with great caution before making gifts or loans; and As the property attorney, one of your main legal duties is to keep accounts of all transactions involving the property. A person • charitable gifts, if the grantor previously made similar gifts or named in the power of attorney or the Public Guardian and authorized these gifts. Trustee may request your accounts and can apply to the Court for an order requiring you to submit your accounts. As well, the If the grantor indicates to you that he or she does not want to grantor, the grantor’s attorney for personal care, any of the grantor’s make gifts or loans, you should follow the grantor’s wishes. dependants, or a creditor of the grantor, may apply to the Court for an order requiring you to submit your accounts. It is, therefore, extremely important that you maintain your records and accounts. 6 7
"Duties and Powers of a Property Attorney in - Saskatchewan Justice"