Duties and Powers of a
Property Attorney in
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
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
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.
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
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.
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
• 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.
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
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.
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,
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
• 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;
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
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