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POA Weekly – Week 5: Does an Attorney have an Obligation to Account?

While an attorney is required to keep accounts, an attorney is not required to pass accounts before a court.   A court may, however, order that all, or a specified part of the accounts of an attorney be passed.[1]  The accounts are filed in the court office and follow the same procedure as the passing of estate accounts.[2]  Although a passing of accounts application may not be required, it may still be advisable to formally account, since once the accounts have been passed, they have received court approval and cannot be questioned at a later date by persons having notice of the passing of accounts (except in the case of fraud or mistake).

Attorneys for Property are statutorily entitled to compensation pursuant to the Substitute Decisions Act.[3]   The compensation taken should be in accordance with the prescribed fee schedule.  Section 40 of the SDA sets out the guidelines to follow when an attorney is taking compensation.  Often the Power of Attorney document itself will provide guidance as to compensation to be taken; however, in cases where the document is silent, s. 40(1) and O. Reg 26/95, section 1, provide that compensation can be taken as follows:

An attorney may take annual compensation from the property of,

3% of capital and income receipts;

3% on capital and income disbursements; and,

3/5 of 1% on the annual average value of the assets as a care and management fee.[4]

Notwithstanding such provision within this Act, the attorney can have compensation increased or reduced by the court when passing accounts.

Attorneys are not permitted to disclose any information contained in the accounts and records, unless required to do so in certain circumstances, but accounts or records must be produced to the incapable person, the incapable person’s other attorneys, and the Public Guardian and Trustee if required.

The SDA provides a list of individuals who may apply to have accounts passed, including the guardian, or attorney of the incapable person, a dependant of the grantor or incapable person, the Public Guardian and Trustee, the Children’s Lawyer, a judgment creditor of the incapable person and anyone else, with leave of the court.[5]

A Continuing Power of Attorney for Property (“CPOAP”) terminates upon a new one being executed unless the document provides for multiple Powers of Attorney to exist.  Care should be taken in drafting a CPOAP where one already exists for property in another jurisdiction, since the new document may unintentionally revoke the existing document in other jurisdictions. Similarly, the problem is not overcome by providing for the new Power of Attorney document to simply cover “worldwide assets” since such assets may not be covered by the Ontario Power of Attorney, and therefore, when drafting the new CPOAP, care should be taken so that it co-exists with the Power of Attorney in the foreign jurisdiction.

[1] Substitute Decisions Act,1992, S.O. 1992, c. 30, as amended, s. 42(1) [SDA].

[2] Ibid at s. 42(6).

[3] Ibid at s. 40(1).

[4] O. Reg 26/95 at s. 1.

[5] SDA, supra note 1, at s. 42(4).

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