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Ask A Lawyer – Power of Attorney

Q. My father recently passed away and my siblings and I were named executors of his estate. My mother is still alive and I have Power of Attorney over her health and financial affairs. What are my obligations to my mother and the other executors?

A. The exercise of the Power of Attorney can occur in different situations. The Attorney (you) can be called upon in the event the donor (your mom) is out of the country. In such a case, you may be able to get their instructions directly and so long as the instructions are carried out, there should be no problems.

The problem arises where the giver of the Power of Attorney (your mom) is incapacitated and her instructions cannot be obtained. In Ontario, if the Power of Attorney is to be activated in the case of incapacity, the document must specifically say so. If there is not clear direction in such a case, the Power of Attorney will be null and void.

Quite often, there is animosity within the family which may be heightened by naming one or two people to the exclusion of the others. The decisions made by the Attorney will be scrutinized not only by the Attorney but by the rest of the disgruntled family members.

In some cases, it may be advisable to name a couple or several persons to act together. This will reduce the chances that all the Attorneys make the same mistake and are therefore liable to the estate for any losses incurred.

Being named under a Power of Attorney carries with it significant responsibility. It should be noted that the Attorney is personally liable to the estate of the person giving the Power of Attorney in the event any decisions result in a loss to the estate.

It is therefore imperative that the Attorney exercise and discharge their duties carefully and fully thought out.

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