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Fiduciaries, Mom and Apple Pie

One question that we are frequently asked is “When does my role as an attorney for property begin?” Often this question comes from an adult child, who wants to know either when they should start helping Mom or when they can start helping Dad with paying bills, making investment decisions, etc. It usually arises because the child sees that Mom or Dad needs a little (or a little more) help now, and they want to make sure that the parent who took care of them is now taken care of in turn.

This natural desire to help a parent who is beginning to need it would be characterized as wholesome and healthy by most in our society, arising from those values we cherish and hold up as part of our shared “good”, like “Mom and apple pie”. However, it also leads the child into the legal realm of attorney for property matters, where not only is it important to know when an attorney can or should begin to take on their appointed role, but what the consequences are of doing so. 

Unless the power of attorney for property states otherwise, and assuming that it is a continuing power of attorney for property and is not limited in some way, most powers of attorney for property on their face allow the attorney to begin acting from date of execution. Sometimes the power of attorney will be in safekeeping with the drafting lawyer with specific instructions which govern its release, for example only if the donor is capable and directs it be released, or if incapable, provided there are medical opinions which state the donor is incapable of managing his or her property. What is key is delivery of the power of attorney to the attorney.

The next question is whether the attorney should begin acting. This can be a difficult question, and will depend in part on the circumstances and what the wishes of the parent (or other person who appointed the attorney to act for them) are and whether they are prepared to allow the named attorney to begin to act on their behalf and deliver to them the power of attorney so they can do so. These matters can be complicated if the parent is experiencing dementia and has grown suspicious of the child (unfortunately a not infrequent effect of dementia) or of others in their life. Sometimes the parent will ask the child who is acting as attorney to begin assisting them, for example, because of physical difficulties in paying bills, making the transition fairly easy; sometimes expert assistance is needed to navigate the complications that arise.

Commensurate with this question, but sometimes overlooked, is whether the appointed attorney should act at all. No one can be forced to act as an attorney for property against their will, and the appointed attorney can renounce the role if they wish. As part of this decision, it is important for an attorney to know the legal responsibilities and consequences associated with the role. As discussed in my blog on fiduciary accounting, attorneys for property are one type of fiduciary under the law. Fiduciaries are entrusted with an important role which provides them authority over the property of other persons. The role of a fiduciary comes with legal obligations, one of which is the duty to account to those with a financial interest in the property the fiduciary has been entrusted with. This duty, or any perceived failure to fulfill it, can lead to disputes with other interested parties, potentially dragging the attorney into an unforeseen quagmire of legal disputes and broken relationships if not properly and carefully handled.

My husband is fond of quoting his mother and grandmother, and one of their many pearls of wisdom is “Begin as you mean to go on”. Good advice for many aspects of life, and good advice for attorneys when beginning to act. Care and planning, and proper legal advice, can greatly assist an attorney to start their role off right, preventing many future problems and costs and keeping the high ideals which usually accompany the beginning of such a role intact.

— O’Sullivan Estate Lawyers

Don’t miss our next blog post on avoiding mistakes as an American in Canada.

The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.