You Have Been Appointed as an Attorney

From Clicklaw Wikibooks
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kevin Smith in January 2018.

Like many people, you may never have been an attorney under a power of attorney before. That’s why Managing Someone Else's Money was created. This guide will help you understand what you can and cannot do in your role as an attorney.

In the role of attorney, you are a fiduciary. A fiduciary is someone who is in a position of trust toward another person. A fiduciary has duties and responsibilities. This guide will help you understand what those are. It also offers tips to help you avoid problems, and resources to find more information.

This guide is for family and friends serving as an attorney, not for professionals or organizations. The guide does not give you legal advice. Talk with a legal professional if you have questions about your duties or responsibilities.  

Your duties depend on the type of power of attorney

The most common type of power of attorney is called an enduring power of attorney. In this type, the attorney’s appointment continues—or “endures”—if the person making it becomes mentally incapable. The duties and responsibilities in this guide apply to enduring powers of attorney.   

Powers of attorney can also be "general" or "limited". In a general power of attorney, the attorney's appointment ends if the person making it becomes mentally incapable. In a limited power of attorney, the attorney’s powers are limited to a specific task or a specific period of time. For example, to sign the papers on the sale of a home while the person making the power of attorney is out of the country on vacation.

Not all the duties and responsibilities in this guide apply to an attorney appointed under a general or a limited power of attorney. That said, if you are an attorney under a general power of attorney for a long time period, it is advisable to do all the things covered in this guide.

If you want to learn about making a power of attorney, this guide is not designed for you.  Talk with a lawyer or notary public. These resources are also helpful:

A scenario

Let's start with a scenario about how you might have become an attorney under a power of attorney.

Your family member or friend is worried she will get sick and won't be able to pay her bills or make other decisions about her savings and her house. For this guide, let’s call her Martina. Martina has signed an enduring power of attorney. This kind of power of attorney continues if the person making it becomes mentally incapable. In it, Martina names you as her attorney. She gives you the power to make decisions about money, property and other legal matters for her.

The law gives you a lot of responsibility as Martina’s attorney under her power of attorney. You are now a fiduciary with fiduciary duties.

What is a fiduciary?

Having been named to manage money and property for someone else, you are a fiduciary. You are in a position of trust toward Martina. The law requires you to manage Martina’s money and property for her benefit, not yours.  

When you act as an attorney for Martina, you have four key duties you must keep in mind:

  1. Act honestly, in good faith and in Martina’s best interest.
  2. Manage Martina’s money and property carefully.
  3. Act within the authority you are given and within the law.
  4. Keep good records.

These duties are explained in the section “Four Key Duties of a Fiduciary”. They apply whether you are managing a lot of money or a little. They apply whether you are a family member or not.

If you do not carry out these duties, you could be removed as an attorney, sued or have to repay money.

It is even possible the police or a public official (the Public Guardian and Trustee) could become involved. They can investigate you and bring you before a court.

It’s always important to remember: It’s not your money!

Before you start

Before you first act as an attorney, consider the job you are about to take on. Consider the nature of the fiduciary duties you will have to follow and the potential for difficulties to arise.

For example, consider whether acting as attorney is likely to put you in situations where your personal interests conflict with your fiduciary duties.  

Consider how difficult the task is likely to be. Take into account things such as:

  • the value and nature of the adult’s property
  • how organized their affairs and papers are
  • views of family members and concerned friends, and the potential for disagreement among them
  • if there are multiple attorneys, the potential for disagreement with them

Consider whether the power of attorney provides for the attorney to be paid for their time. The law says you can be paid for acting as an attorney under an enduring power of attorney only if the document says you can and sets out the amount or rate.

If you decide not to act as attorney, you may resign. You can do so by giving written notice to the adult and any other attorneys named in the power of attorney. If the adult is incapable of making decisions at the time you resign, you must also give written notice of the resignation to a spouse, near relative or (if known to you) close friend of the adult.

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