Duties and Responsibilities of an Attorney Under a Power of Attorney

Note this article provides legal information, not legal advice. Reading this article should not be construed as obtaining legal advice from Ross Estate Law.

When someone appoints an attorney to manage their affairs through a Power of Attorney (POA), the attorney assumes significant legal and ethical responsibilities. These duties are designed to protect the interests and rights of the donor—the person who has granted the power—and ensure that their affairs are managed with integrity and care. Below are the key duties that an attorney is bound by under this legal arrangement:

1. Duty of Loyalty (Section 5(1))

An attorney is required to uphold a duty of loyalty to the donor, which encompasses several important obligations:

• Follow the Donor’s Directions: The attorney must act according to the specific instructions or wishes provided by the donor, ensuring that the donor's preferences are respected.

• Act in the Donor’s Best Interests: Even if specific instructions are not provided, the attorney must always prioritize the best interests of the donor, making decisions that benefit the donor and protect their well-being.

• Act in Good Faith: All actions taken by the attorney should be done honestly and with integrity, with the intention of serving the donor’s interests.

• Avoid Secret Profits: The attorney cannot use their position to make personal financial gains or benefits from the decisions made on the donor’s behalf.

• Avoid Conflicts of Interest: The attorney must ensure that their personal interests or external relationships do not conflict with the duty owed to the donor.

• Refrain from Self-Benefiting Actions: The attorney is prohibited from acting for their own benefit or for the benefit of third parties, unless the donor has explicitly given informed consent for such actions.

2. Duty to Respect Personal Relationships (Section 5(2))

An attorney is also required to respect the donor’s personal connections. Specifically, they should not unreasonably interfere with or prevent personal contact between the donor and supportive friends and family. Maintaining these relationships is important for the donor’s emotional and psychological well-being, and the attorney should avoid actions that could isolate the donor unnecessarily.

3. Duty of Care (Section 5(3))

In exercising their authority, the attorney must use the judgment and care of a reasonably prudent person. This means making decisions with the same level of caution, thoughtfulness, and responsibility that any prudent individual would apply in similar circumstances. The attorney is expected to act carefully and thoughtfully to safeguard the donor’s interests.

4. Duty Regarding Estate Plan (Section 5(4))

The attorney must be mindful of the donor’s estate plan, which includes any will or trust arrangements. The attorney cannot dispose of assets that are part of the donor’s estate plan unless it is necessary to comply with their duties under the POA. This ensures that the donor’s estate plan is respected and that their assets are handled in accordance with their intentions.

5. Additional Duties (Section 5(5))

In addition to the duties outlined above, the attorney may be subject to further obligations as prescribed by applicable regulations. These could include specific guidelines or rules that govern the attorney’s conduct, ensuring that their actions are always in line with the law and the donor’s wishes.

Conclusion

Being appointed as an attorney under a Power of Attorney is both a serious responsibility and a position of trust. Attorneys are required to act with loyalty, respect, and care in managing the donor’s affairs. By adhering to these duties, the attorney ensures that the donor’s decisions are respected, their estate is protected, and their personal relationships are maintained, even during times when the donor may be unable to act for themselves.

Please note that the information provided in this blog post is for general informational purposes only and is not intended as legal advice. Reading this post does not create an attorney-client relationship, and the information shared here should not be relied upon as a substitute for professional legal counsel. If you require personalized legal advice regarding estate planning or any related matters, we encourage you to schedule a consultation with Ross Estate Law to discuss your unique circumstances.