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Sunday, June 26, 2016
Saskatchewan Justice

The Purpose of an Attorney

People who are growing older may be unable to look after their basic financial transactions. They may be unable to do their own banking, look after day-to-day bills, buy personal items, buy food, shelter and services, and collect payments to which they are entitled or deal with assets they own such as a house or investments. This makes them extremely vulnerable. It also affects other people such as dependants, service providers and those who own property together with the grantor. The role of an attorney is to step into the shoes of the grantor for the purpose of financial decisions and transactions on the person's behalf. This serves to protect the welfare of the grantor. It also indirectly benefits others whose own financial interests are connected to those of the grantor.

This obligation is a very serious one. Almost every aspect of the grantor's life is affected - directly or indirectly - by the attorney's actions. By performing the role diligently and sensitively, the attorney will give the grantor the most comfortable, enjoyable and safe life that the grantor can afford. On the other hand, extreme harm can result to the grantor and to others if the attorney does not act diligently and honestly. Therefore, the highest standards of honesty, integrity and trust are demanded from the attorney.

Passing control of a grantor's income and assets to an attorney does not mean that the attorney assumes ownership of the income and assets. Ownership remains in the name of the grantor. He or she is simply responsible for managing, in the best way possible, what the grantor has.

Who can Act as an Attorney?

An attorney can be an individual or a corporation. The attorney does not have to be a lawyer, and does not have to be a resident of Saskatchewan to act for someone living in Saskatchewan. He or she may be a family member, friend, advisor or other person.
Attorneys must be at least 18 years of age and mentally competent. A person is not allowed to act as an attorney if he or she:

  • is an undischarged bankrupt (in the case of a property attorney);
  • has been convicted within the last ten years of a Criminal Code offence for an act of violence, theft, fraud or breach of trust (unless he or she is pardoned or, while the grantor has capacity, discloses the conviction to the grantor who consents to the person acting); or
  • is in the business of providing personal or health care services to the grantor for compensation.

The grantor can appoint more than one attorney and give each specific powers or state that they are to act separately, together, or successively when dealing with his or her affairs.

Unless an enduring power of attorney states otherwise, two or more attorneys are deemed to be appointed to act jointly and their decisions must be unanimous. If one or more attorneys is unable to act, the remaining attorney or attorneys may continue to act.

A grantor may also appoint a corporate attorney (e.g., a financial institution) which must disclose its fees in writing to the grantor before the grantor signs an enduring power of attorney.

Duties of an Attorney

The person who acts as attorney is responsible to the grantor for making decisions about his or her financial affairs. The attorney must act honestly, in good faith, in the best interests of the grantor, and with the care reasonably expected of a person with the attorney's experience and expertise.

Attorneys are allowed to charge a reasonable fee for their services. An attorney who charges a fee must provide an annual accounting to:

  • the grantor; or
  • if the grantor lacks capacity, a person named by the grantor in the EPA or, if no person is named, to the grantor's nearest available adult family member (other than the attorney) and to the Public Guardian and Trustee.

Even if an attorney does not charge a fee for services, the attorney has a duty to account to the grantor upon request. The grantor or, if the grantor lacks capacity, a person named by the grantor in the EPA or, if no person is named, an adult family member of the grantor may request an accounting at any time. If an accounting is not provided, any interested person may ask the Public Guardian and Trustee to direct the attorney to provide an accounting. If the Public Guardian and Trustee does not direct the attorney to provide an accounting or the attorney does not do so, the grantor or, if the grantor lacks capacity, another interested person, or the Public Guardian and Trustee, may apply to the Court of Queen's Bench to direct the attorney to provide an accounting.

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