Governing Document – In the case of a power of attorney, it is the power of attorney document which generally does not have to be in any prescribed format. Where a person has been appointed by the court to be the guardian of property for another, the governing document is the court order which may incorporate things like a management plan with respect to the incapable person’s property.
Other relevant documents for the administration of the grantor’s property can include: contracts; investment agreements and insurance policies; shareholder, partnership and family law agreements; mortgage and other loan agreements as well as guarantees.
Proof of Authority – For powers of attorney for property, in most jurisdictions there is no approval process (Quebec is an exception). Also, there is no registry for powers of attorney for property in most jurisdictions. Therefore, establishing the validity of a power of attorney document and whether it is still in effect can be difficult.
Tasks – Every power of attorney situation is potentally different so it is important for the attorney to understand not only the general legal rules but the specific requirements for their appointment which is why all relevant documentation needs to be collected up at the start and carefully reviewed. Professional assistance may be needed to understand the contents of the power of attorney document and any other relevant documents.
Typical tasks an attorney is expected to complete include, but are not limited to: locate and review all governing and other documents; locate and secure all property of the grantor over which the attorney will have control; determine any liabilities of the grantor for which the grantor is expected to exercise control; develop a plan for the management of the grantor’s property over which the attorney will have control; retain professional advisors to assist as required; file tax returns for all tax years of the grantor if necessary; maintain records of the management of the grantor’s property in prescribed form; report to grantor and any other persons as required; satisfy all debts of the grantor and obtain discharges as required; distribute the property of the grantor as required for the benefit of the grantor and such other persons as permitted; wind up the administration of the grantor’s property on death of the grantor for transfer to the estate trustee; pass accounts and obtain a discharge from the court if required.
This is not a conclusive list and the tasks are not necessarily listed in the order to be completed. Attorneys for property should obtain professional advice to determine exactly what tasks need to be completed in their particular circumstances.
Coming soon – a PDF power of attorney for property administration checklist.