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Duties and Powers of a Property Attorney in - Saskatchewan Justice


									Duties and Powers of a
Property Attorney in

              DUNNING PLACE

                              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
 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 (
 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:
    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.

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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
    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.

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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
                                                                                  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
      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.

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