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Focus: Clarify lawyers’ duties in POA documents

Benefit from south-of-the-border approach: litigator
|Written By Michael McKiernan

Every power of attorney document in the province should spell out the duties expected of attorneys so that lay people know what they are getting into when they take on the role, according to a prominent estate litigator.

Charles Ticker, who runs an estate litigation and mediation practice from his Markham, Ont. office, says Ontario’s Substitute Decisions Act would benefit from amendments similar to the ones made in some American jurisdictions in an attempt to better inform potential attorneys before execution of the document. 

In Illinois, POA documents include a “notice to agent” that sets out the responsibilities of an attorney. Meanwhile, in New York, attorneys are required to sign an acknowledgment of their duties to, among others, act in the grantor’s best interests, avoid conflicts and keep financial records before they can act.

“I feel it should all be set out in clear language in every power of attorney document, so people can better comprehend what is required,” Ticker says.

When clients come through his door looking for a POA, he says, they rarely understand just what they’re getting themselves into. One of his first acts is to hand them a copy of the SDA, where the responsibilities of an attorney are laid out in detail.

“There are some very onerous requirements in there,” Ticker says. “Some of them may decline to act or not want to take on the role, because it’s a lot of work and a tremendous amount of responsibility.” 

“When someone passes away, executors know to go to a lawyer, but I don’t think that necessarily happens when someone becomes incapable,” says Suzana Popovic-Montag, managing partner at Toronto firm Hull & Hull LLP. “That’s something the profession needs to educate the general public more about.”

And attorneys who beef up on their knowledge can expect to have to use it, according to Ticker, who says the proliferation of POA disputes has exploded in recent years, with children “no longer waiting until their parent dies to fight over the estate or even try to challenge a will.”

Popovic-Montag says her practice is about “40 to 50 per cent” POA litigation, compared with about 10 per cent when she started out in the estates litigation field. 

“We’ve got an increasingly aging population. The baby boomer generation are living longer than anyone has before, and statistically speaking, the longer you live, the more likely you are to develop the types of cognitive disorders and concerns that can bring a power of attorney into play,” she says. “They’re also accumulating more assets, which means there’s a lot more money to fight over than there ever was before.” 

For some attorneys, a lack of preparation can come back to haunt them long after they begin to act, according to Popovic-Montag, who says rigorous record keeping and a clear delineation between the finances of attorneys and grantors are a must. 

“There are lots of pitfalls. Even if you think you’re acting in the best interests of the individual, with hindsight, someone can complain. There are a lot of creative arguments people can make afterward about what you should have done,” she says. 

For example, she says if an attorney arranges to sell an incapacitated person’s unused house to help fund their care but later finds out it was promised to someone else in the will, they could find themselves exposed, particularly since attorneys are required to obtain and review a copy of the person’s will if one exists.

Other attorneys are caught out by their lesser-known responsibilities, such as the duty to “foster regular contact” between the incapable person and their family and friends, and to keep them informed about the person’s condition. 

“I’d hazard a guess that the vast majority of power of attorney documents are drafted without much thought being given as to whether they’re the proper person to be appointed. They have to be trustworthy and have the ability to get along with family members,” Ticker says.  

While most power of attorney disputes relate to property and finances, Danielle Joel, a partner at Borden Ladner Gervais LLP, says some of the most difficult cases involve the other major category of attorney — those for personal care. 

“Where the dispute is really over personal care, it becomes extremely challenging. At least with money, there is some hope of setting a case,” says Joel, who practises in the firm’s Toronto office. “If someone feels the attorney is not taking proper care of mom or that she’s not getting the right set of treatments or that she’s not living in a safe environment, those kinds of things are much more difficult to resolve. They present a real challenge to the court system, and I’m not sure we have a good process for determining them.”

Ticker says lawyers in the field need a particular set of skills to succeed. 

“You have to be part lawyer, part social worker and part psychiatrist,” he says. “A lot of the litigation is driven by emotion and bad blood between siblings. Somehow, you have to deal with that and focus on the legal issues.”

Joel, who also chairs the Ontario Bar Association’s trusts and estates law section, says she expects power of attorney issues to move into the mainstream as more people gain first-hand experience of them. She says demand is growing for her help from “financial institutions, businesses and all kinds of third parties” who are being asked to deal with people holding powers of attorney for other individuals. 

“Last week, I was speaking on this subject at a large corporation, and I started by saying that 10 years ago, they would never have asked me to speak,” Joel says.

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