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POA Weekly – Week 2: What are the Common Law Duties of an Attorney under a Power of Attorney?

An attorney is a fiduciary who is in a special relationship of trust with the grantor.[1]  A fiduciary has the power to alter the principal’s legal position.  As a result of this special relationship, the common law imposes obligations on what an attorney acting as a fiduciary may do.  A fiduciary:

  • must use reasonable care in acting;
  • must not obtain secret profits;
  • must account;
  • must not allow personal interests to conflict with those of the principal;
  • cannot make, change or revoke a Will on behalf of the donor; and
  • cannot assign or delegate his or her authority to another person, unless the instrument provides otherwise. Certain responsibilities cannot be delegated.

The Power of Attorney can be tailored to the specific wants and needs of the grantor.  In other words, it can be used to grant:

  • a specific, or limited authority;
  • general authority granting the power to do all that is permissible under the governing principles and legislation;
  • a continuing authority, meaning that it will survive subsequent incapacity; and
  • it can deal not only with property matters but, also personal care matters as well.

[1] For a discussion on when a fiduciary relationship will arise, see Frame v. Smith, [1987] 2 SCR 99; 1987 CarswellOnt 347 (SCC) at para. 39.

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