Abuse of a Power of Attorney

When you are appointed as an Attorney pursuant to a Power of Attorney, you are placed in a position of extreme trust. You, the Attorney, owe a fiduciary duty to the person who has appointed you (the “Donor” of the power). You must exercise your powers (legal, financial, land related – not health), diligently, honestly, with integrity and in good faith for the Donor’s benefit ONLY. You must act in the Donor’s best interests whilst taking into account their current wishes, known beliefs and values. To the extent reasonable, you must give priority to meeting the Donor’s personal care and health care needs (when managing their financial affairs). You also have a duty to foster the independence of the Donor and encourage the Donor’s involvement in any decision-making that affects them.

In addition to the above, the Attorney has a duty to account for his/her management of the Donor’s affairs. Keeping good records is key. Not providing a clear accounting of how you handled the Donor’s affairs can lead to abuse claims by potential beneficiaries of the Estate or other family members. The Attorney may be required to produce an Accounting while the Donor is alive by the Court, the Public Guardian and Trustee, an Alternate Attorney or the Donor’s Committee of the Estate and on the Donor’s death by the Executor or the beneficiaries of the Estate. So, there are several avenues to keep an Attorney on the right track and potential to challenge the Attorney if it is felt that they have been misusing their powers.

The Attorney may further be personally liable for any damages or loss suffered by the Donor as a result of the Attorney’s actions. That being said, provided the Attorney has acted honestly, reasonably and diligently, the Court may relieve the Attorney from personal liability.

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or [email protected]. Vanessa practices in the area of Wills / Estates and Real Estate at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

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