Power of attorney a ‘powerful and dangerous’ document: Aulis
By AdvocateDaily.com Staff
Lawyers and their clients must tread carefully when drafting and implementing a power of attorney (POA), says Toronto trusts and estates lawyer Patrick J. Aulis.
“In many ways, it’s one of the most powerful and dangerous documents we draft,” Aulis, founder of Aulis Law Firm Professional Corporation and North York Mediation, tells AdvocateDaily.com.
Under the Substitute Decisions Act, attorneys for property are granted the authority over the grantor’s property, including their finances and bank accounts. Meanwhile, attorneys for personal care take responsibility for decisions about the person’s health care, nutrition, shelter, clothing, hygiene, and safety.
While many clients regard POAs as an item to tag on to the agenda when drawing up a will, Aulis says he likes to take time to talk them through its significance and the importance of their choice of person to fulfil the role.
Here are the top three attributes he tells clients to consider when selecting someone to take on the power of attorney role:
- Are they someone you can trust?
- Can they do the job?
- Do they want the job?
“Trust is at the core of an appointment under a POA,” Aulis says, explaining that most people will choose a close friend or family member they know very well.
Still, if he has concerns about the possibility of undue influence being exerted on a grantor by a potential attorney, Aulis will have no hesitation about exploring the situation further.
Recently, he refused to act in the case of an elderly man who was brought in by a niece to amend an existing POA by appointing her instead of one of his own children.
“I brought him into my back office, where there was no chance that we would be overheard, and asked him to explain what he was trying to achieve. He had an explanation, but it didn’t make much sense and sounded like he was parroting back information that had been fed to him,” Aulis says.
“For a lawyer, it boils down to understanding your client’s needs and spending some time to determine whether they have capacity.”
Even those with the best intentions get things wrong, Aulis says, explaining that not all people have the abilities necessary to carry out the often onerous duties expected of an attorney.
“Intentions don’t have to be nefarious, but an attorney has the ability to change your investments, sell your house and spend your money,” he says. “They may think they’re doing you a great favour by investing in a Ponzi scheme when they just don’t know what they’re doing.
“At the end of the day, you are the person who will suffer as the result of any loss, especially when large sums of money are involved at a later stage of life when there’s no time to recoup any losses,” Aulis adds.
He says there is no point naming an attorney who is unwilling to act. Aulis says he advises clients to consult with potential appointees before seeing a lawyer to draft POAs.
“You don’t want to get into a situation where you’re sick or incapacitated before you find out that person has neither the time nor the inclination to do the job,” Aulis says.