One or more persons may be appointed under a POA.  If the POA directs that more than one person acts, then such persons must act jointly (as in the need to agree on all decisions), and are jointly liable for each other’s actions, unless a “joint and several” POA permits each of the appointed persons to act alone.

Quite often joint and several POA’S are drafted to give the grantor the flexibility or the added security of having more than one attorney appointed, but giving one or more of those jointly appointed attorneys the ability to act unilaterally.  This sort of construction may be particularly relevant to circumstances where one or more of the attorneys is likely to be in a different jurisdiction than that of the grantor of the POA for periods of time, or for other reasons particular to the circumstances of the grantor.

POA litigation files where one or several attorneys have acted without the knowledge or approval of the others is not an uncommon issue. 

The type of power granted, and to whom the power of appointment is granted, is a matter for consideration by the client and the lawyer at the time of drafting the document.  This issue has been touched on briefly above when considering who the most appropriate person is for the appointment.

In every situation there are circumstances that must be addressed with a client to ascertain what the best arrangement is for the appointment of attorneys.  By requiring that the attorneys act jointly, the grantor benefits from a further safeguard against the abuse of the power granted.  The joint appointment is akin to a “checks and balances” system, which is beneficial where abuse is on the rise and litigation stemming from such abuse is increasing.

A joint appointment forces accountability between the attorneys appointed.  Another benefit of making a joint appointment is the flexibility of appointing persons who may offer different perspective, and which may in turn benefit the grantor.  The appointment of a relative or close friend, perhaps coupled with a professional may bring added comfort to the grantor.

Issues to be addressed with a client will also necessarily be the replacement of any of the attorneys in circumstances of death, incapability of acting, or resignation.

In one rather sad case, McMaster v. McMaster,[1] a mother appointed her two sons as attorneys under a POA. The Court noted:

 It is interesting to note pursuant to subsection 7(4) of [the Substitute Decisions Act] that if there are two persons named as attorneys (as in this case) “the attorneys shall act jointly”, unless the power of attorney otherwise provides.  Although the power of attorney provides that the attorneys are appointed both “jointly and severally” there is no limiting phraseology with respect to either of their roles.  This mandatory language would presuppose that there would be transparency between the brothers as to the steps either one takes on behalf of their mother.[2]

Unfortunately, the mother decided not to tell one of her sons that he was appointed as her attorney (or forgot to do so). The son, who knew he was an attorney, and had access to his mother’s assets, used her life savings to invest in rather dubious business ventures including a go-kart business. By the time the second son figured it out, the mother’s assets were depleted by almost $2 million.

The Court removed the first son as the attorney and ordered that he provide an accounting for the money. The Court found that the he “did not demonstrate the transparency required of him as a co-attorney”.  He did not advise his co-attorney about the go-kart investment until after the fact and was not forthcoming with a passing of accounts. Ultimately the Court concluded that the “fiscal stewardship of [the son] has been a disaster for his mother.  He has literally blown through at least $2,000,000.  If there was ever a case for removal of an attorney this is it.  It will prevent the further hemorrhaging of his mother’s assets.”[3]

The type of appointment decided upon by the grantor of the POA, for the most part, is dictated by the particular personal circumstances of the grantor.  In every instance it may not be possible to appoint joint attorneys.  That said, the merits of a joint appointment should be considered with the client grantor since it is a means of putting in place a measure of security for the prevention of abuse.  The preventative measures of the lawyer from the outset will go a long way to avoiding costly litigation in the future.

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[1] McMaster v. McMaster, 2013 ONSC 1115.

[2] Ibid at para. 7.

[3] Ibid at paras. 60-62.

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This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.