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Power of Attorney Powers and Duties

Overview

What decisions can my attorney make for me?

Both a personal attorney and a property attorney may be restricted in what decisions they are able to make on your behalf. Your attorney might be restricted to helping with, or doing, one specific thing for you, like selling a quarter section of farm land or picking out your care home. On the other hand, your attorney might be able to completely step into your shoes and do everything that you could do except make or change your will. Essentially, your attorney has as much, or as little, power as the power of attorney gives them. The scope of the power of attorney is up to you and you should think carefully about how broad you want it to be.

Please also see the Public Legal Education Association of Saskatchewan (PLEA) website for more information. See, in particular, the PLEA FAQs – Deciding When Your Attorney Can Act for You and FAQs – Deciding What You Want Your Attorney to Do for You.

Can I still make my own decisions after I sign a power of attorney?

In some circumstances, the answer is "yes" and in others it is "no." Depending on the type of power of attorney and your mental capacity, there are varying degrees of decision-making that you still will be able to undertake once you have signed your power of attorney.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

What duties does my attorney have?

Your attorney must abide by the provisions of The Powers of Attorney Act, 2002, and principles that have been developed over the years by judges in court cases. When in doubt about a course of action, your attorney would be well advised to speak to a lawyer or seek the advice of a judge (via a court application). Generally speaking, your attorney must act:

  • honestly;
  • in good faith;
  • in your best interests;
  • with the care that could be reasonably expected of a person with the attorney's experience and expertise; and
  • taking into consideration, where possible, your wishes.

As a general rule, your attorney must not use the power of attorney to benefit themselves. However, the attorney can pay themselves for their efforts on your behalf. You can set out the amount in the power of attorney. If you do not, a href="https://publications.saskatchewan.ca/#/products/1325">The Power of Attorney Regulations set out what fees your attorney can charge you.

Your attorney also has an obligation to keep careful track of their decisions and report on them to you, or certain other individuals, if asked. This obligation is known as a duty to account.

For more information, please see the Public Legal Education Association of Saskatchewan (PLEA) website.

Are there decisions my attorney cannot make?

A property attorney cannot make a will for you or change your existing one.

A property attorney cannot give another person (even your close friend or family member) a gift from your financial resources unless:

  1. your power of attorney expressly permits the gift
  2. your property attorney applies to the court for a judge's permission to give the gift and gets that permission
  3. if your power of attorney is silent on the issue of the gift or gifting in general, the gift does not use up financial resources you need to support yourself, your spouse or any of your dependants; is the kind of gift you likely would have made if you had had capacity; and does not have a value greater than $1,000.

* *The total value of all gifts made in a one-year period must not exceed $1,000

A personal attorney cannot make health care decisions for you. If you want someone to make health care decisions for you now, or in the future, you need to sign a health care directive. Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information on health care directives.

Also, your attorney cannot exceed the authority granted to them in the power of attorney.

Should my attorney open joint accounts with me or add their name to my bank accounts or land title?

While they may seem convenient, these types of actions by your attorney can facilitate financial abuse and create legal problems when you die. Your attorney can carry out their duties without adding their name to your assets; there is no legal reason for them to do so.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

Should my attorney be paid?

You can stipulate in the power of attorney what, if anything, your attorney should be paid. Traditionally, if you did not mention compensation, your attorney could charge you a "reasonable fee" for the work they did for you. What was reasonable depended on the skill and ability displayed by your attorney, the time they spent performing duties, the size or complexity of your holdings, the care and responsibility required, and other such factors.

Changes to the law in 2015 made the issue of payment clearer. If your power of attorney does not mention what your attorney should be paid and a judge hasn't made an order regarding what your attorney can pay themselves, then:

  • your personal attorney can only charge you a maximum of $15/hour for the time spent managing your personal affairs; and
  • your property attorney can only charge you up to a certain percentage for managing your financial affairs (currently that maximum percentage is 2.5% of the money received by you each month and 2.5% of the payments made on your behalf each month).

Your attorney does not have to charge you a fee. However, if your attorney charges you a fee, they must account to you for that fee each year. If you no longer have mental capacity, the attorney must provide this accounting to the person you named for this purpose in your power of attorney or, if no one is named, to your most immediate and available family member and the Public Guardian and Trustee. As of 2015, your attorney must also render a final accounting when you pass away, cancel your power of attorney or when your power of attorney is terminated for some other reason.

Please see the Public Legal Education Association of Saskatchewan (PLEA) website for more information.

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