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Understanding the Crucial Roles of Powers of Attorney and Estate Trusteeship in Managing Your Assets

Updated: Aug 25, 2023

Understanding the Vital Roles of Powers of Attorney and Estate Trusteeship in Planning for Your Future
Understanding the Crucial Role of Powers of Attorney and Estate Trusteeship in Securing Your Legacy

1. General

This presentation is intended to provide a top-down discussion of each role and to relate my personal experience in handling a number of occurrences at the request of people that trust you to handle their affairs when they are unable to (they are referred to as Grantors).

Grantors generally have formal documents constructed to convey their wishes/instructions with the assistance of a professional Lawyer and sworn by a qualified Commissioner for Taking Affidavits (either in person or by video conference). These are your terms of reference to execute the given tasks.

Powers of Attorney and Estate Trusteeships may be afforded to one individual or divided per the Grantor’s wishes. Each document should name a substitute individual assigned by the Grantor should you be unable or unwilling to complete your mandate.

There are three distinct documents:

i) Power of Attorney for Property;

ii) Power of Attorney for Personal Care; and

iii) Last Will and Testament.

Powers of Attorney are only effective while the Grantor is alive. Responsibility transfers to the Estate Trustee upon the death of the Grantor.

Please note that person(s) appointed under these legal documents can be held liable in court for misusing the authority granted to them. It is essential that you maintain complete and comprehensive records of your work.

Powers of Attorney are only effective while the Grantor is alive.  Responsibility transfers to the Estate Trustee upon the death of the Grantor.
Powers of Attorney and Estate Trusteeships may be afforded to one individual or divided.

2. Power of Attorney For Property

You are responsible for:

  • Ensuring that all regular bills, taxes and expenses are paid;

  • That investments are prudent and properties are maintained; and

  • All of the above are made in the best interest of the Grantor.

3. Power of Attorney For Personal Care

You are responsible for ensuring the Grantor’s physical well-being while the Grantor is unable to care for her/his self. This involves:

  • Daily tasks such as making sure the Grantor is bathed, fed and dressed;

  • Whether to move the Grantor into a long term care home;

  • Ensuring that the Grantor’s contact with supportive family and friends is maintained; and

  • Ultimately, making sure the Grantor’s wishes pertinent to either refuse or consent to treatment and/or level of care (which could be ranged from Do Not Resuscitate (DNR) to extending life under any circumstances).

4. Last Will and Testament

As the Estate Trustee (or “Executor”), you have a fiduciary role, which means an elevated duty of care is owed to the estate and the beneficiaries under the Will.

You are responsible for, among others:

i) Notifying 3rd parties of the will-maker’s death;

ii) Ensuring all outstanding debts, taxes, expenses, etc., relating to the individual or the administration of the estate are paid, including terminal tax returns;

iii) Working with 3rd parties such as lawyers and accountants;

iv) Keeping meticulous records of income, disbursements and communication with 3rd parties;

v) Communicating with beneficiaries in order to distribute their shares under the Will; and

vi) Commencing the court application for probate, if necessary.

You must be diligent, efficient and organized. Beneficiaries are entitled to apply to the Court to have you demonstrate that you have been performing your role to the appropriate standard. The potential consequences of ineffective administration include the removal by the Court and/or financial liability with respect to the beneficiaries.

5. Conclusion

Before you commit to any or all of the above, make sure you have the time, patience, support and will to put much (if not all) of your other personal and business priorities on hold (or treat them as lesser priorities) during the peaks you surely will face.

Some things I encountered that you might want to keep in mind are:

i) Making sure you have the latest true copies that include a legal Affidavit of the POA and/or Will (if the Grantor does not have this, the law firm they used will);

ii) I wasn’t initially aware of all the bureaucracy you will undoubtedly face dealing with financial & insurance institutions, government, etc., who also have an obligation to your Grantor;

iii) Ensuring that you are fairly compensated for your expenses and time & effort;

iv) The difficulty in separating your emotions from the legal and obligatory decisions you will be compelled to make; and

v) Keeping your spouse/partner/family relationships as solid as they were before you undertook this obligation.

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