Avoid Choosing the Wrong Person as Power of Attorney

Having a Power of Attorney for Property (POAP) in place is a positive and practical step for our parents and relatives to take as they prepare for their retirement years. Probably the most important decision the Grantor (the person who makes the POAP) must make is who will be their ‘Attorney’. This is the term given to the person identified in the POAP as the one who will assistin the management of the Grantor’s property (e.g.,bank and investment accounts, credit cards, household spending) should a time come when assistance is required. It is important for us as potential care-givers to understand that identifying this person is the Grantor’s decision to make, with the help of competent legal counsel. They may or may not ask us our opinion. However, once they have chosen, we need to respect their decision and be ready to support their Attorney down the road, should we be asked to.

It is important to recognize that when the POAP is signed, the Grantor is not giving up any of their rights to manage their property. Unless incapable of doing so, they still have control of their property and are entitled (and should be encouraged) to participate in and fully manage their financial affairs. The role of the Attorney is to provide a degree of assistance. The degree of assistance required will vary with each unique set of circumstances and will undoubtedly change over the years as the Grantor’s health changes.

Given the role that an Attorney is expected to fulfill, what are the essential characteristics an Attorney should have in order to fulfil their obligations?

First and foremost, the Attorney needs to be trustworthy. The most important responsibility the Attorney has is to act honestly and loyally with integrity, strictly in the Grantor’s best interests at all times, respecting the Grantor’s right to privacy and confidentiality. This is often referred to as having a fiduciary duty. While the Grantor remains capable, the Attorney may or may not be assistingthe Grantor. The Grantor needs to know and trust that they can count on their Attorney for assistance, but only when it’s needed.

Secondly, the Attorney needs to be someone who can be counted on to communicate regularly and succinctlywith the Grantor. The relationship must be such that conversations about spending, investment strategies and general financial circumstances can be entered into with ease and frankness.

And finally, a natural tendency to be organized and methodicalwould be advantageous traits for the would-be Attorney. Apart from the practical implications that come from being organized, there is a legal obligation placed upon the Attorney to keep accurate records of all the Grantors assets they are responsible for. This may be no more than making notations on the monthly bank statements of what transactions represent and ensuring there is documentation to support the expenditures. Just how detailed the record keeping will be, however, depends to a large extent on the individual circumstances of the Grantor and the level of complexity of the Grantor’s affairs. The existence of organizational skills will greatly reduce the possibility of the role of Attorney becoming overly burdensome and time consuming.

Once the Grantor has decided on the best person to fill the role of Attorney, they need to ask the person. Hopefully the person will say “yes,” but they are under no obligation to do so. The Grantor should also not rule out the possibility of appointing two people to act, jointly, as their Attorney. The role of Attorney can be a daunting task and may be more readily accepted if being shared.

Finally, it is important to note that a person does not start acting as an Attorney the day the document is signed by the Grantor. In fact, the person(s) identified as Attorney may never act in such a capacity. However, having a POAP in place will provide peace of mind should the day come when assistance is required.

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