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POA Weekly – Week 13: What are an Attorney’s Obligations Under the Substitute Decisions Act?

As already noted, the Substitute Decisions Act (the “SDA”) sets out the framework within which decisions regarding the management of property, and personal care are made. The SDA is a collection of statutory duties and obligations for attorneys, and is codified in such a form so as to prescribe the rules, so to speak, for the attorneys.[1]

The SDA applies not only to attorneys under a POA, but also to statutory guardians and to court appointed guardians. The SDA sets out separately the types of duties applicable to attorneys for property, and for personal care.

The duties and responsibilities are similar as regards property and personal care, but differences do exist. The SDA divided the provisions into decisions involving property, and personal care.

The many duties and responsibilities for attorneys, either for property or personal care, make it essential that an attorney/grantor of such power is educated such that each role assumed may be fulfilled to the best of one’s ability while understanding the extent of the authority, and scope of duties and liabilities granted, or received.

A POA is viewed as a beneficial planning tool because of its flexibility, the power terminating on death and active from the date it is executed. Notably, the POA for Personal Care only becomes active when a person is incapable of making the relevant care or treatment decision.  Customization is optional, and therefore POA’S are useful tools.  In certain circumstances, trusts may be better suited for the management of assets in the event of incapacity.  There are many advantages to a trust document, including the benefit of continuity on death.  This is only an aside for consideration as an alternative, either way, careful and considered planning should prevail.

[1] “Checklist: Duties of an Attorney Under Power of Attorney for Property” online at: http://www.welpartners.com/resources/WEL_CapacityChecklist_POA_Property.pdf and “Checklist: Duties of an Attorney Under Power of Attorney for Personal Care” http://www.welpartners.com/resources/WEL_CapacityCheckist_POA_PersonalCare.pdf

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