So if you suspect that the attorney for property has done something wrong what are some of the things you should look for? The first thing you should know is that an attorney for property has both a common law and statutory duty to keep proper records of all transactions involving the property1. The court may order that the accounts of an attorney for property be passed2. When examining those accounts here are some of the things to look for:
Are The Accounts In Proper Court Format?
Ontario legislation requires a certain format for the accounts. It provides a structure to ensure all relevant assets of the Grantor are listed and indicates what monies have been received and spent. Sometimes a less informal accounting misses information.
Are there Missing Assets?
A proper accounting lists assets assets as of the date of the first transaction by the attorney for property and an ongoing list of assets acquired and disposed of on behalf of the incapable person, including the date of and reason for the acquisition or disposition and from or to whom the asset is acquired or disposed. Often the attorney for property will claim that the grantor gifted an asset. This is a concern because it is “…It is a fundamental principle of every developed legal system that one who undertakes a task on behalf of another must act exclusively for the benefit of the other, putting his own interests completely aside.3
Are there joint Assets missing from the accounting?
One way for two or more people to own an assets is joint tenancy. In the ordinary course when one of those people die the survivor(s) inherit the deceased’s share, However, when a joint account is held by a child together with an elderly parent n the Supreme Court of Canada decisions of Pecore v. Pecore and Madsen Estate v. Saylor, stand for the proposition that there is a legal presumption that all these monies belong to the estate. Accordingly, unlike the normal joint accounts, these monies may not pass to the remaining owner(s) by right of survivorship.
Proof of Legitimate expenses – Are there Vouchers?
An attorney for property has an absolute duty to keep receipts. Failure to keep receipts may lead to the court drawing an adverse inference that the attorney for property breached his fiduciary duty.4
How much Compensation was claimed?
An attorney of property is entitled to compensation. While there is a tariff that is only a guide. How much may depend on the language of the Power of Attorney and the nature of the assets and work done.
These are just some of examples of what should be looked at when examining an attorney for property accounts. If a person with a financial interest has concerns they are well advised to hire a lawyer with expertise in the area to examine the accounts in detail.
- See sections 32(6), and Substitute Decisions Act, 1992, S.O. 1992, c. 30 Accounts and Records of Attoneys and Guardians, O. Reg. 100/96 ↵
- See section 42 of Substitute Decisions Act, 1992, S.O. 1992, c. 30 to describe who may apply to have the accounts passed. The legislation provides that the attorney for property, the grantor, the attorney for personal care, a dependant of the grantor, The Public Guardian and Trustee, the Children Lawyer, a judgment creditor or any other person with leave of the court. ↵
- See Jacobs v. Hershorn at http://www.canlii.org/en/on/onsc/doc/2006/2006canlii10522/2006canlii10522.html ↵
Please see paragraphs 52 – 60 Fareed v. Wood, 2005 CanLII 22134 (ON S.C.) at http://www.canlii.org/eliisa/highlight.do?text=%22adverse+inference%22+accounting+%22power+of+attorney%22&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/on/onsc/doc/2005/2005canlii22134/2005canlii22134.html
In this case the court drew an adverse inference because the attorney was unable to properly account for the transactions occurring while he was attorney. In part, this results from his failure to maintain proper records. As a result of transactions occurring in her lifetime, the testamentary gifts intended by Ms. McLeod, and clearly stated in her Will, are defeated. In Sopinka, Lederman and Bryant, “The Law of Evidence” the author states, “In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation a party litigant does not testify, or fails to provide affidavit evidence on the application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist the party. ….. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.” ↵