Duties and Powers of a Personal Attorney in Saskatchewan

Duties and Powers of a Personal Attorney in Saskatchewan DUNNING PLACE 7068_mjag_PGT-Duties and Powers of a Personal Attorney.indd 1

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Table of Contents Duties and Powers of a Personal Attorney... 3 1. Power of Attorney... 3 2. Authority... 4 3. Responsibilities... 5 4. Expenditures... 5 5. Financial Abuse... 6 6. Fees... 6 7. Keeping Records... 6 8. Accountings... 7 9. When Does Authority End... 8 10. Health Care Directives... 8 11. Confidentiality... 9 12. Contact Information... 10 1 7068_mjag_PGT-Duties and Powers of a Personal Attorney.indd 1

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Duties and Powers of a Personal Attorney The purpose of this booklet is to help a person who has been appointed as a personal attorney under a power of attorney. It explains what this important role involves, what things the personal attorney is allowed to do and what steps must be taken by the personal attorney to meet their obligations to the grantor. This booklet may also be useful to others who are not personal attorneys. For example, if you are considering agreeing to be the personal attorney of a relative or friend, you should be fully aware of the responsibilities. If you are working with a personal attorney, you may want to know what the personal attorney is allowed to do and what you can expect in your dealings with them. The powers and duties of a personal attorney are established by law. The Powers of Attorney Act and the Regulations (http://www. justice.gov.sk.ca/pgt) 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. 1. Power of Attorney There are many circumstances where a person may wish to give someone the authority to manage their personal affairs and/ or their property matters. This can be accomplished by signing a power of attorney. The person giving this authority is called a grantor and the person who is given the authority is called a personal attorney or property attorney. The power of attorney gives certain authority to the attorney, but the grantor also retains that authority. In many cases, the power of attorney provides that it will continue after the grantor becomes incapable of making decisions on their own. This is called an enduring power of attorney. In those circumstances, the attorney will be solely responsible for making decisions for the grantor. 3 7068_mjag_PGT-Duties and Powers of a Personal Attorney.indd 3

The obligation of attorneys who are 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 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 attorney does not act diligently and honestly. Therefore, the highest standards of honesty, integrity and trust are demanded from the attorney. If a power of attorney only appoints a property attorney with no reference to a personal attorney, the property attorney is automatically the personal attorney. This booklet deals specifically with the duties and powers of a personal attorney. The duties and powers of a property attorney are described in the booklet Duties and Powers of a Property Attorney in Saskatchewan which can be found on our web site http://www.justice.gov.sk.ca/pgt. 2. Authority As a personal attorney, you can do anything related to the grantor s personal affairs on their behalf that they could do if capable. Unless the conditions of the power of attorney restrict you, you are allowed to do the following on the grantor s behalf: Determine a place of residence; Indicate who can and cannot associate with (visit) the grantor; and Arrange programs that the grantor will attend. You are entitled to receive information about the personal affairs of the grantor and copies of any documents relating to those personal affairs from any hospital, care home, health professional, person or business. For example, you could ask the nursing home for reports about the grantor. 4 7068_mjag_PGT-Duties and Powers of a Personal Attorney.indd 4

3. Responsibilities You should consider the personal comfort and well-being of the grantor in determining whether a decision or action is for the grantor s benefit. The most important goals are to act in the best interests of and maximize the quality of life of the grantor. As the personal attorney, you should encourage the grantor to participate, to the best of their abilities, in your decisions about their personal affairs. You should try to inform the grantor of all your decisions and actions, to the extent that the person is able to understand. You must make decisions about the grantor s personal care with the best interests of the grantor in mind. If you are not also the property attorney, you will need to consult with the property attorney when making decisions. For example, if the grantor wants to live in a certain place and can afford it, you should work with those in charge of the grantor s finances to fulfill this wish. If the grantor wants to take a vacation and can afford it, you should work with those controlling the funds to have the person go on the vacation with proper arrangements for care and safety. You may want to make a personal decision which the grantor cannot afford. In that case, the property attorney can ignore your decision and refuse to pay. For example, the grantor might want to continue to live in their house, but may require 24-hour care and may not have enough money to pay for it without selling the house. In that case, the property attorney may refuse to pay the 24-hour care and insist on selling the house. There can be conflict between the wishes of the personal attorney and the wishes of the property attorney and, ultimately, it could result in going to court to obtain direction from a judge. 4. Expenditures The property attorney is responsible for all expenditures. The personal attorney is responsible for all personal decisions. Where one lives is a personal decision but it has financial implications. It will be necessary to discuss those decisions with the property attorney to determine whether they are possible. Will the decision and the expenditure reduce the grantor s assets too quickly so he or she will not have enough to live on? If the property attorney says there are sufficient funds, then you are 5 7068_mjag_PGT-Duties and Powers of a Personal Attorney.indd 5

entitled to proceed with the personal decision. If the property attorney disagrees with your approach and says there are not enough funds, then the decision of the property attorney will prevail. This can be a source of conflict and disagreement. Ultimately, it could result in going to court to obtain direction from a judge. 5. Financial Abuse If you suspect the property attorney is personally using or misusing the grantor s funds, you should take steps to stop the abuse. These steps are described in the booklet Minimizing the Risk of Financial Abuse to Vulnerable Adults which can be found on our web site http://www.justice.gov.sk.ca/pgt. 6. Fees As a personal attorney, you can charge fees. Usually, these fees are charged based on the hours worked. It is advisable to keep a record of the time you have spent performing your duties as personal attorney. The record should include the date, the number of hours, the purposes and the result. If you wish to charge fees, it is preferable that the power of attorney authorize you to do so. If the power of attorney does not provide this authority, The Power of Attorney Act allows you to charge a specified fee. Alternatively, you could obtain a court order allowing you to charge a specified fee. 7. Keeping Records The records you keep must include a list of all personal decisions and actions you took including the date, others involved, the purpose and the result. Examples of decisions or actions would include: decided to move mom into a suite, condo, care home or nursing home; decided to take dad to the ophthalmologist to obtain new glasses; 6 7068_mjag_PGT-Duties and Powers of a Personal Attorney.indd 6

decided to take mom to dentist to have teeth checked and determined whether she needed dentures; decided to move dad from a personal care home to a nursing home and made an application for that purpose; decided to take mom to get the flu shot; decided to tell the Director of Care not to allow uncle Sam to visit because he always upsets dad by bringing up the issue of the will; decided to arrange to have mom go to a daycare program and have a taxi pick her up and bring her back home; discussed with the property attorney and decided to arrange to have home care come in 15 hours a week; decided to purchase new clothing for mom; discussed with the property attorney and decided to arrange for dad to travel to Calgary to visit his oldest son; and arranged for an ambulance to take mom to the hospital. It is also a good idea to keep copies of documents relating to your decisions. You should keep copies of application forms, admission forms, contracts and invoices. Even though you may not be responsible for paying the bills, they will reflect decisions you have made. Documents will help you remember the dates when specific actions were taken. This will help you complete the annual accounting. 8. Accountings You may be required to report annually on your decisions and actions if you are charging a fee and the grantor lacks capacity. If no one is specifically named in the power of attorney to receive the accounting, then you should provide it to the most immediate and available adult family member of the grantor and to the Public Guardian and Trustee. Your accounting is different than the accounting from the property attorney in that it will not 7 7068_mjag_PGT-Duties and Powers of a Personal Attorney.indd 7

have incomes and expenditures but rather will have statements regarding decisions or actions taken (examples above). The Power of Attorney Regulations provide a form that can be used as a guide in preparing an accounting. It can be viewed on our web site http://www.justice.gov.sk.ca/pgt. 9. When Does Authority End You retain authority until: another person is given the authority to manage the grantor s personal affairs. This could be a new personal attorney or a personal guardian appointed by the Court; the grantor dies; you are discharged from your duties by the Court; you are provided with a document revoking your authority as personal guardian; or being the spouse of the grantor, the two of you separate with the intention of ending your spousal relationship. When you hand over the accounts and records, you should retain photocopies in the event that someone questions you in the future. In addition to the accounts, you must keep the original power of attorney document that appointed you and any court orders that relate to the grantor s personal affairs. 10. Health Care Directives Health Care Directives, often called Advanced Care Directives, appoint a proxy. A proxy is authorized to act and make medical decisions when a person is unable to consent to health care treatments. A personal attorney cannot make decisions under The Health Care Directives and Substitute Health Care Decision Makers Act. Those decisions are to be made by the named proxy when the adult is incapable of making those decisions himself or herself. These are mainly medical treatment decisions. You can see the booklet Health Care Directives at our web site http:// www.justice.gov.sk.ca/pgt. 8 7068_mjag_PGT-Duties and Powers of a Personal Attorney.indd 8

11. Confidentiality As you work on the grantor s personal affairs, you should be as confidential as you believe the grantor would wish. If the grantor was very secretive, then you might consider adopting a similar approach. If the grantor shared everything with family, then you should do the same. You should follow any instructions in the power of attorney regarding confidentiality. You should keep in mind that being open and transparent with your family reduces suspicion of your actions and increases trust that you are doing things properly. You can provide copies of your records or information to: the grantor; a person named in the power of attorney; the grantor s property attorney; the Public Guardian and Trustee; and other family members you consider entitled to the information. This booklet is provided to help a person who has been appointed as a personal attorney under a power of attorney. While it provides useful information about the role and responsibilities of an attorney, it is only a summary and it is not legal advice. If you have specific questions about your own situation, you should speak to a lawyer or an accountant for advice to guide you. 9 7068_mjag_PGT-Duties and Powers of a Personal Attorney.indd 9

12. Contact Information Public Guardian and Trustee of Saskatchewan 100-1871 Smith Street Regina, SK S4P 4W4 Telephone: (306) 787-5424 Toll Free: 1-877-787-5424 Fax: (306) 787-5065 Email: pgt@gov.sk.ca Website: www.justice.gov.sk.ca/pgt Office Hours: Monday through Friday, 8:00 a.m. to 5:00 p.m. (Closed for the noon hour and holidays) Distributed by: Public Guardian and Trustee March 2014 10 7068_mjag_PGT-Duties and Powers of a Personal Attorney.indd 10