Choosing an attorney: How to make the right choice
Are you considering entrusting certain tasks to a family member or friend if you are no longer able to do them yourself or if something unexpected happens? In such a case, you could use a power of attorney.
However, it’s important to know that the choice of an attorney (also called a “mandatary” or “tutor to property” in Quebec, depending on the contract that is signed) should not be taken lightly. You need to make sure you choose the best person to act on your behalf to manage your money, property and finances when the time comes.
Here is some additional information about the attorney’s role and responsibilities as well as tips for choosing the person whom you will fully trust.
The attorney: Someone whom you should trust
First, note that the attorney doesn’t take ownership of your assets; you are only authorizing the attorney to administer your assets on your behalf. Therefore, you are responsible for monitoring the transactions carried out by your attorney (a mandatary in Quebec) to ensure that they meet your expectations and needs.A power of attorney is a contract through which you authorize a person - your attorney - to represent you in performing certain actions, which may include the administration of your money and property. Therefore, you must be able to give free and informed consent to this designation.
You should also know that a power of attorney can be given for a definite or indefinite period and can be withdrawn at any time if you have doubts about your attorney’s reliability. If your situation is complex, you can hire a notary or lawyer to help you draft the power of attorney.
Depending on your province of residence, the title of attorney and the latter’s role may differ. Here’s an overview of the attorney’s role and responsibilities, as well as a few distinctions.
Who can be an attorney?
For ease of reading, this article uses the term “attorney,” although a person with a power of attorney is now called a mandatary or tutor to property. However, we’ll provide some clarification between the two designations when necessary.
Here, a power of attorney refers to two situations not to be confused: the appointment of a mandatary to perform certain tasks, even if you’re able to, and the appointment of a tutor to property who can act on your behalf when you no longer have the capacity to act on your own.
What are the attorney’s role and responsibilities?
The attorney’s role and responsibilities may differ depending on whether you live in Quebec or Ontario. Here is a non-exhaustive list of tasks your attorney could perform, depending on the case.
In Quebec, the attorney you designate only looks after your finances and property, in much the same way as you would yourself. Of course, you’re the one who decides what powers you want to give them.
What your attorney can do:
- Perform banking transactions in your account.
- Sign cheques.
- Buy or sell real estate on your behalf.
- Buy consumer goods for you.
- File your tax returns.
What your attorney cannot do:
- Make your will.
- Make changes to your will.
- Designate or change the beneficiary of a life insurance policy.
- Give someone else a new power of attorney on your behalf.
Although your attorney must act in your best interests, a power of attorney sometimes results in situations of abuse because of the broad duties it confers. That’s why you should appoint someone you trust who understands all the legal responsibilities associated with the duties of attorney.
Mandatary or tutor to property: clarification on when duties begin
The appointment of a mandatary takes effect on the date the contract is signed or on the agreed-upon data that is specified. The appointment of a tutor to property only takes effect when your incapacity has been proven or when the contract is homologated by the court, if you are declared incapable.
There is a power of attorney that is only for your banking transactions at the caisse
Although the power of attorney for property allows your attorney to manage all your financial assets, there is a caisse power of attorney specific to Desjardins that allows the attorney (in this case, a mandatary) to manage only the open accounts associated with your folio number. You can sign it in the presence of your attorney and your advisor using the appropriate form provided by the caisse. Important: Remember that you are still responsible for your accounts and the transactions made in them.
However, if you become unable to take care of yourself and your assets and it is proven that you are incapable, the power of attorney signed at the caisse would no longer be valid.
Other types of protective supervision in the event of incapacity
There are other types of protective supervision to support you in case of a temporary or permanent incapacity, such as a curatorship or tutorship. Protective supervision may be requested by a family member or friend who cares about your health or the sound management of your assets, or by yourself even, if you feel you are becoming cognitively impaired.
In Ontario, the person in charge of a power of attorney is called an attorney or continuing attorney for property. There are two types of power of attorney: a continuing (or enduring) power of attorney for property, and a power of attorney for personal care. We’ll talk more about the power of attorney for personal care further on.
The attorney you appoint only looks after your finances or property, in much the same way as you would yourself. Of course, you’re the one who decides what powers you want to give the attorney.
Attorney for property
What your attorney can do:
- Act on your behalf to administer your property if you become mentally incapable of doing so yourself.
- Perform banking transactions in your account, file your tax returns, and manage your income, real estate and investments.
- Administer or perform transactions on your behalf within the limits of the power of attorney until your death, the mandate is revoked, or a new attorney is appointed.
What the attorney cannot do:
- Appoint another attorney or a replacement.
- Convert one of your single-holder accounts to a joint account.
- Change the identity of the holders of your joint account(s).
A few clarifications
The power of attorney for property comes into effect as soon as it is signed, meaning that your attorney can immediately make decisions about your finances unless you decide otherwise. If you wish to defer the power of attorney, you can add a clause stating that your attorney can only make decisions if you become mentally incapable, for example.
There is a power of attorney that is only for your banking transactions at the caisse
Although a power of attorney for property allows your attorney to manage all your financial assets, there is a power of attorney specific to Desjardins that allows the attorney to manage only the open accounts associated with your folio number. You can sign it in the presence of your attorney and your advisor using the appropriate form provided by the caisse. Important: Remember that you are still responsible for your accounts and the transactions made in them.
Attorney for personal care
In Ontario, there is also a power of attorney for personal care that authorizes someone (an attorney) to make decisions about your personal care on your behalf in the event you become mentally incapable. Decisions can be about healthcare, nutrition, where you live and the type of medical treatment you may receive.
You can appoint the same person(s) or choose a different person for the power of attorney for property and the power of attorney for personal care. Regardless of what you decide, you will still have to sign the 2 separate documents. You may also decide to use a single power of attorney, but it’s recommended to have each one to avoid any possible complications for yourself and your loved ones in case of an unforeseen event or illness.
The minimum age requirement for an attorney varies depending on the province or territory. In Quebec, an attorney must be 18 years of age or older. In Ontario, a person must be at least 18 years old to act as an attorney for property.
You can decide to appoint someone you know very well as your attorney. You could choose your spouse, a close friend, a family member or any other person whom you can rely on. Some professionals also offer their services as attorneys.
When you think you’ve found the right person, you should ask them if they’re willing to take on the duties of attorney and everything that comes with it. You should be aware that the person you wish to appoint may change their mind at any time or simply decline. You could therefore consider a replacement in the event that your first choice is unable to act as your attorney.
What are the qualities of a good attorney?
Identify a few potential candidates from the people you know and choose one that meets several of the following criteria:
- Is open and honest
- Has sound judgment
- Looks out for your best interests
- Is able to make decisions related to your finances and has experience doing so
- Is familiar with your financial situation and your expectations
- Understands the responsibilities and duties associated with being an attorney
- Can be reached easily.
Does the attorney have to be paid?
You’re not required to pay your attorney. However, bear in mind that acting as an attorney may involve some arduous tasks or expenses. That’s why it’s generally recommended that you offer the attorney some compensation, which is at your sole discretion. If you believe that you have been the victim of financial abuse by your attorney, please contact us as soon as possible.
There are others who could take care of you and your affairs
There are other people besides an attorney who can assist you if needed. Depending on the type of assistance you need, you could appoint people to help you in ways that involve fewer responsibilities.
Trusted contact person
- In appointing a trusted contact person you authorize the caisse to contact them in circumstances that you specified ahead of time (suspected financial abuse, cognitive impairment, etc.).
- Your trusted contact person must be capable, since they must be available to help you if you need assistance to protect your financial interests.
- Your trusted contact person is not authorized to perform any transactions on your accounts.
Public Curator (Québec)
- If you are declared incapable and did not appoint a mandatary or tutor to property and no family member or friend is able to represent you, the Government of Quebec may appoint a public curator as a last resort.
- The public curator is a legal representative who represents you if you are no longer independent, protects you, administers your property and ensures your welfare.
- The public curator’s role and responsibilities are determined by a judge based on your level of incapacity and circumstances.
Office of the Public Guardian and Trustee (Ontario)
- If you are declared incapable and did not appoint an attorney, and no family member or friend is able to represent you, the Government of Ontario may appoint a public guardian or trustee as a last resort.
- The Office of the Public Guardian and Trustee therefore acts as an attorney to represent you if you are no longer independent, protects you, administers your property and ensures your welfare.
Assistant (Quebec only - starting in November)
- Your assistant is a person you have chosen who becomes your intermediary when, because of certain difficulties, you wish to be assisted in making decisions or participating in various activities.
- The public curator must first assess and then approve your assistant; a public register of assistants is kept and may be consulted by any organization authorized to do so.
- For example, your assistant could help you with the administrative management of a rental property.
- They may communicate or receive information about you, but they are not a legal representative.
Regardless of your age or health, it’s never too early to think about preparing a power of attorney. If something unexpected happens, you’ll be able to carry out certain wishes that are important to you, including managing your finances. That’s why it’s important to choose the right person to make decisions that could impact your quality of life.
It’s also a good idea to question your choice because over time, your needs, expectations and relationship with your attorney could change. Don’t hesitate to question your choices and, above all, follow your instinct!
Do you have more questions about the caisse power of attorney? Your advisor will guide you in making decisions and assist you when you sign the documents. If you have any questions of a legal nature, contact a qualified advisor or a lawyer to get all the answers you need.