Date: 29 Mar, 2024| Author: Fred Streiman

We had earlier looked at The Substitute Decisions Act, which is the important act that governs the use of Powers of Attorney.  It contains the law with respect to the use of a Power of Attorney for property.

Some of us might be surprised to find that an attorney appointed under a Power of Attorney has the right to look at the donor’s Will.  Curious as to why that is? The reason is found in section 35.1, which prohibits the attorney from disposing of property that the attorney knows is subject to a specific testamentary gift in the incapable person’s Will.

Again the Donor is the person making or granting the Power of Attorney and the Attorney is the person to whom the power has been granted to.

In English, if the donor’s Will says I leave my gold coin collection to my son Bill, the attorney needs to know that, and it prohibits the attorney from selling the gold coin collection.  Despite that provision, the attorney can still sell the gold coin collection, if it is necessary to comply with the attorneys obligations.  Those obligations include acting in the best interests of the donor of the Power of Attorney.  It is illogical to preserve a gold coin collection if the donor is short of cash.  If there is significant money involved, it makes sense for the attorney to take advantage of section 39, which reads that if an incapable person has an attorney, the court may give directions on any question arising in connection with the guardianship or Power of Attorney.

In other words, if the attorney is not certain whether they are or not empowered to take a particular step, they can seek the advice of the court in advance.  These are issues that often come before Attorney Lawyers  aka lawyers such as ourselves who regularly deal with Wills and Power of Attorney, and if parties are fighting or if need the courts direction it can involve Estate Litigation lawyers such as ourselves.