Proper and Improper Use of A Power of Attorney

An Attorney appointed to act for another adult under a Power of Attorney has an onerous task. They must keep good records and only act in the adult’s best interest. They must never use the Power of Attorney to benefit themselves. Unfortunately, the lines often become blurred. This is sometimes an issue when an older/ailing parent appoints their adult child or children as their Power of Attorney. The children want to avoid Probate so they think it is a good idea to start gifting the parent’s cash to themselves; they try to add their name to the parent’s bank account etc. All these things are seen as “benefitting” yourself under the Power of Attorney. This is a breach of their fiduciary duty, which is the highest standard of care owed to the adult. It is also incompatible with the Law.

By the same token, an Attorney cannot transfer real estate to themselves. So, the adult children cannot use the Power of Attorney to try and add their name as Joint Tenant(s) on the parent’s title to try and avoid Probate (which is rife with issues in and of itself). This is specifically barred by the Power of Attorney Act and any transfer would be disallowed at The Land Title’s Office.

The Attorney’s role is as a protector, a guardian and a fiduciary, whose role is to safeguard the adult’s assets. If the parent wanted to take these steps, they could have done so, while still capable. Their Power of Attorney, absolutely should not.

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/incapacity 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 and Estates at Pushor Mitchell LLP in Kelowna.

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