Under Ontario’s Substitute Decisions Act, 1992
Securing Authority:
- Ensure that any and all pre-conditions for acting have been met.
- If necessary, obtain the release of the power of attorney document.
- Review formal validity of the Power of Attorney or Court Order.
- Review any and all restrictions on the attorney’s or guardian’s authority in the Power of Attorney, Order of Guardianship (or related plan of management) and the Substitute Decisions Act, 1992.
- Consider real or potential conflicts of interest.
- Determine whether there are any other concurrent powers of attorney in favour of others.
- Determine whether there is a need to secure foreign authority to deal with any foreign assets.
Notification of Grantor’s Incapacity (if any):
- Notify all banks, brokers, trust companies or other financial institutions, with whom Grantor had accounts or dealings.
- Notify any personal attendants or housekeepers.
- Notify professional service providers (accountants, bookkeepers, financial advisors).
- Notify insurance companies regarding automobile, home, disability or life insurance.
Determining Assets:
- Identify assets that are in the custody or control of a third party, and request information or delivery of asset, as appropriate (Section 33.2 SDA).
- Obtain copies of and review the incapable person’s Will, insurance policies, title deeds, investments/bank accounts, stock certificates and bonds.
- Review income tax returns for previous two years.
- Review cancelled cheques.
- Re-direct mail.
- Review all documents pertaining to loans or guarantees of debt (whether business loans or personal loans to relatives or a friends).
Securing Assets:
- Ensure insurance policies are up to date.
- Arrange for maintenance of real property (house, cottage, vacation property in foreign jurisdiction).
- Take possession of credit cards, ATM cards or blank cheques, but make appropriate arrangements to provide needed pocket money.
Determine Obligations:
- Identify any dependants (spouses or former spouses, children, grandchildren, disabled siblings, elderly parents).
- Determine amount to be allocated to dependents pursuant to provisions in the Power of Attorney/Order of Guardianship or under Section 37(1)(2) SDA.
- Review Separation/Divorce Agreements or subsisting support orders governing spousal or child support obligations.
- If the incapable person has, while incapable, made improvident gifts, or assumed contractual obligations, consider taking proceedings to recover gifts or rescind contract.
- Identify other valid obligations of the incapable person that must be honoured (car or apartment leases, condominium fees, service agreements).
General Considerations:
- A Guardian of the property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit (Section 32(1) SDA).
- If the Guardian’s decision will have an effect on the incapable person’s personal comfort or well-being, the Guardian shall consider that effect in determining whether the decision is for the incapable person benefit (Section 32(1.1) SDA).
- The Guardian shall manage a person’s property in a manner consistent with decisions concerning the persons’s personal care that are made by the person who had the authority to make those decisions, except in respect of a decision concerning the person’s personal care if the decision’s adverse consequences in respect of the person’s property significantly outweigh the decision’s benefits in respect of the person’s personal care (Sections 32(1.2) and 32(1.3) SDA).
Other Obligations of Attorney or Guardian:
- Identify and consult with the Attorney for Personal Care (Section 32(1.2) SDA).
- Explain to the incapable person what the Attorney’s/Guardian’s powers and duties are (Section 32(2) SDA).
- Encourage the incapable person to participate, to the best of his or her abilities, in decisions (Section 32(3) SDA).
- Foster regular personal contact between the incapable person and supportive family members and friends (Section 34(4) SDA).
- From time to time consult with:
- supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and,
- the Persons from whom the incapable person receives personal care.
Management Plan:
- After the incapable person’s assets and obligations have been determined, a Statutory or Court-Appointed Guardian of Property should review the Management Plan to determine whether it requires amendment, and should also consider whether any matters require an application to court for directions.
- After the incapable person’s assets and obligations have been determined, an Attorney acting under a Continuing Power of Attorney is well advised to prepare an informal management plan, and to consider whether any matters require the attorney to expand his or her powers (for example, by obtaining a – guardianship order) or to apply to the Court for directions.
- Whether making a management plan or not, the attorney/guardian should turn their mind to the following issues:
- A personal budget based on anticipated income and expenditures (including expenditures for support of dependents and charitable giving).
- An investment plan and obtaining suitable investment advice (being careful to avoid unlawful delegation of authority).
- Taxation, and obtaining suitable tax advice (e.g. retaining an Accountant or Bookkeeper, claiming medical tax credits, or disability credits, determining foreign tax liabilities, determining whether you are a representative for the purposes of dealing with Revenue Canada, determining what effect, if any, the activation of the Power of Attorney has on the affiliation of any closely held Canadian corporations under Section 251 and 256 of the Income Tax Act (Canada).
- Management of real property.
- Environmental concerns (for example, the cottage septic tank).
- onsideration of whether there is an election which can (and should) be made under the Family Law Act.
- Completion of outstanding business transactions.
- If the incapable person was the owner/manager of a business, will the business continue in operation or be liquidated. Has incapacity triggered a Buy/Sell Agreement with partners, or accelerated an obligations?
- If the incapable person was Executor or a Trustee, have his or her obligations lapsed or, if not, should the Attorney take steps to terminate the responsibilities of fulfil them himself or herself. If necessary, notify beneficiaries and interested third parties of the incapacity and that the incompetent person will no longer act.
- The purchasing of liability insurance (to example, director’s or environmental liabilities).
- Does the Attorney intend to take compensation for acting as attorney? (The SDA sets a different standard of care for those attorneys receiving compensation as opposed to those who do not. SDA Section 32(7) and Section 32(8)).
- The ongoing maintenance of accounts and records in the prescribed from (see Ontario Regulation 100/96).
Cessation of Attorney’s Authority
- An Attorney’s authority under a Power of Attorney ceases upon the happening of any of the following:
- Resignation of the Attorney (SDA Section 1 1).
- The termination of the Power of Attorney due to:
- the terms of the Power of Attorney, which may be limited to a certain period;
- the death or incapacity of the Attorney;
- the Court’s appointment of a guardian of property for the Grantor;
- the Grantor executing a new Continuing Power of Attorney unless it is specifically provided that there will be multiple continuing Powers of Attorney;
- revocation by the Grantor;
- death of the Grantor (SDA Section 12)
- A Guardian’s authority may be terminated upon motion to the Court (SDA Section 28).
- Upon ceasing to act the Attorney/Guardian should notify all parties with whom he/she has had dealings.
