Ask a Lawyer – “What is a Power of Attorney and what are my duties if I am appointed under a Power of Attorney?”

A Power of Attorney is a document which grants one person (called the “Attorney”) the power to make personal care/medical decisions and/or financial/property-related decisions on behalf of another person (called the “Grantor”). Powers of Attorney can take effective immediately or on a specified date. However, they are often set up to be used when a Grantor loses capacity to make such decisions for themselves, as determined by an Assessor (a medical doctor or Nurse Practitioner).

An Attorney must act honestly and in good faith, exercise reasonable care, and act within the authority granted to them in the Power of Attorney. An Attorney must use the Grantor’s assets only for the benefit of the Grantor and not for their own personal use or anyone else’s use. An Attorney is also expected to keep careful and accurate records of their dealings with the property or finances of the Grantor, including any dealings which may take place when the Grantor still has capacity.

An Attorney is held to a high standard because of the potential power they wield over a Grantor. Ignorance of one’s duties under a Power of Attorney is not an excuse for not complying with them, and Attorneys are expected to educate themselves about their obligations.

Improper record-keeping, misappropriation of funds, or other violations of an Attorney’s duties can result in a court intervening to order the return of the funds, payment of damages from the Attorney to the Grantor, or other remedies.

If you have any questions or concerns about being a Grantor or Attorney, or if you are interested in having a Power of Attorney drafted, we would be happy to assist you.