Responsibilities of a POA for PROPERTY
A POA will be responsible for representing and making decisions for an incapable person or act as an agent to a capable person related to their property and finances. The grantor (person signing the POA) may limit the POA power to only specific acts.
This includes things such as:
- paying bills,
- open/closing bank accounts,
- buying services, etc.
The POA must has an obligation to find the will (SDA ss33.1) and read the grantor's will and is prohibited from disposing of property specifically given in the will (SDA s.35.1(1).
An POA of Property is not allowed to:
- Make decisions regarding your health, safety, diet, medical treatment, etc. as this is the duties of the POA for Personal Care
- Make a will or change an existing will of the incapable person
When does a POA become "active?"
A Power of Attorney of Property grants the POA the right to handle only property and finances. It may have terms stating when it becomes effective, for example, it can state it is effective immediately after being signed as a continuing power of attorney or it is effective at a time when the grantor becomes incapable.
Standard of Care
If a POA is being paid (compensated) to act in their duties then this will determine the standard of care owed to the grantor.
If the POA is not paid for their role, they owe the grantor the duty to act with the level of care, diligence (effort), and skill level that the average reasonable person would be expected to offer.
A paid attorney has the higher standard of a person in the business of managing property of others (SDA ss.32(7)-(8)).
Compensation
Sometimes the grantor will indicate in the POA document what sort of compensation the POA is entitled to. If not, the POA can pursue to claim compensation under s.40 of the Substitute Decisions Act of the following:
- 3% of capital/income receipts
- 3% capital/income disbursements
- 3/5 of 1% of average market value of assets.
Involving the Grantor
Power of Attorneys are responsible for making potentially life changing decisions for the grantor. It is important for the POA to establish a trusting relationship with the grantor by involving them within the decision-making process as much as possible. This includes:
- Maintain a stream of constant communication with the grantor and their family;
- Involve the grantor in decision-making to best of their abilities if possible;
- Consult supportive family who might be involved in the day-to-day care or contact with the grantor;
- Ensure that the grantor and POA are on “the same page” as to the duties and powers the POA owes the grantor
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