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Enduring Power of Attorney - 4 Factors in Choosing an Attorney

When I used to give seminars on Wills and Estate Planning, I would get the initial comment from an audience member of “I don’t know any attorneys or lawyers, so who would I choose to name as my attorney”. My response was always the same: “Attorney” in Canada is simply the old English word for “Agent”. Barristers and Solicitors in Canada are known as Lawyers (not Attorneys). The word Attorney is only used to describe a lawyer in the United States of America. So now that you know you can appoint almost anyone to be your Attorney in your Enduring Power of Attorney, who should you appoint.

Firstly, the laws across Canada have certain initial requirements for your Attorney. In every jurisdiction, your Attorney must be an adult and mentally capable. In addition to that requirement, some jurisdictions have additional criteria. For instance, in Ontario, New Brunswick and British Columbia, your Attorney cannot be someone whom you pay to provide services to you (health care, personal, or otherwise) unless that person is also your spouse or relative. In Nunavut and the Northwest Territories, your Attorney cannot be an undischarged bankrupt. And in New Brunswick, your Attorney cannot be someone who is convicted of an offence involving dishonesty.

Secondly, your named Attorney will be handling ALL of your financial and property matters on your behalf. Their name will appear on all of your assets including bank accounts and perhaps land titles as “XYZ, power of attorney for ABC”, and they will essentially have carte blanche access to your finances and property. As such, there is great risk of misuse and depletion of your assets. The Attorney might decide to use your funds as their own bank account or move around funds in a way that dupes would-be beneficiaries out of the gifts under your Will. They might also lend your funds to themselves or other people "close" to them or decide to gift away your funds in any way they see fit. It is therefore extremely important to appoint someone that you trust to act responsibly and in your best interests as your Attorney.

Thirdly, because your Attorney is handling your finances, you need to select someone who is fiscally responsible and is good with handling money. Canadian caselaw and legislation tells us that your Attorney must make decisions that a reasonably prudent person would make, meaning: your Attorney must exercise the same judgement and care that a person of prudence, discretion and intelligence would exercise in the conduct of his/her own affairs if they had the same information your Attorney had. If you decide to allow your Attorney to be paid for acting, then your Attorney is held to a much higher standard similar to that of a financial advisor/Chartered Financial Analyst. Additionally, caselaw tells us that your Attorney must keep a record of all transactions carried out on your behalf including copies of checks, bank statements, receipts for purchases, invoices and records of all expenses paid. Bottom line here is, appoint someone who has excellent money management skills, is organized, intelligent and detailed.

Finally, I often get questions as to whether the person you appoint as Attorney should live in the same province/territory as you. Unlike Wills (and estate) legislation, it does not matter where your Attorney resides. In today’s world, your Attorney can handle your finances online regardless of what province or territory they reside in. There may, however, be some tax implications if you appoint a person outside of Canada to act as your Attorney. If you would like to appoint a resident of another country, you need to seek advice from a qualified tax lawyer or Chartered Professional Accountant.

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