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Power of Attorney - Duties of an Attorney

Your Attorney appointed in your Enduring Power of Attorney (also known as a Continuing Power of Attorney in Ontario) has a number of duties.

Caselaw and legislation impose a number of rules and duties on your Attorney. Among them, most notably:

  • Your Attorney is a fiduciary and has a duty to represent your interests and never place his/her own interests above yours. Ie. your Attorney cannot use your assets for his/her own benefit or the benefit of any third parties to your detriment.

  • Your Attorney must make decisions on your behalf that a reasonably prudent person would make, meaning: your Attorney must exercise judgement and care that a person of prudence, discretion and intelligence would exercise in the conduct of his/her own affairs.

  • Your Attorney must keep all of your funds in a separate account from their own.

  • Your Attorney has a duty to provide an accounting to certain persons as prescribed in the legislation.

  • Your Attorney must keep a record of all income and expenses received or paid on your behalf.

  • Your Attorney should make an inventory of your property and finances as soon as the Enduring Power of Attorney is effective.

  • Once your Attorney begins to act, they cannot be relieved of their duty to continue to act without a court order.

Because of the duties and responsibilities of an Attorney, it is important to always ask the person you are thinking of appointing if they are willing to act. Never foist this responsibility on anyone.

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