Attorney in Ontario – Record Keeping Responsibilities
Clients who act for a person under a power of attorney must keep records. How long must attorneys keep their accounts and records? The deadlines under the regulation for retention are set out here:
Substitute Decisions Act, 1992 Regulation 100/96
6. (1) Every attorney and guardian shall retain the accounts and records required by this Regulation until he or she ceases to have authority and one of the following occurs:
1. The attorney or guardian obtains a release of liability from a person who has the authority to give the release.
2. Another person has acquired the authority to manage the incapable person’s property or make decisions concerning the incapable person’s personal care, as the case may be, and the attorney or guardian delivers the accounts or records to that person.
3. The incapable person has died and the attorney or guardian delivers the accounts or records to the incapable person’s personal representative.
4. The attorney or guardian is discharged by the court on a passing of accounts under section 42 of the Act and either the time for appealing the decision relating to the discharge has expired with no appeal being taken or an appeal from the decision relating to the discharge is finally disposed of and the attorney or guardian is discharged on the appeal.
Mix and Mingling Money is a No-No
In Villa v. Villa, [2013 ONSC 2202 (CanLII) the court was asked to deny an attorney compensation because of misconduct.
Enzo, the attorney, kept a spreadsheet for his financial dealings on behalf of his mother. He included an ongoing list of assets disposed of, moneys received and paid out, and investments. He had not included a list of the mother’s personal property.
Enzo breached his fiduciary duties. He improperly mixed his personal assets with his mother’s. However, he listed the amounts involved in his accounts. Enzo could identify the funds he was to repay his mother. The court found no exceptional misconduct to deny Enzo compensation.
Attorneys are Allowed Compensation
The Substitute Decisions Act, 1992 specifies that attorneys who claim compensation may be held to higher standards of care. On this point, the judge in the Villa case cited authority to dispute there is a double standard:
 There are two standards of care set out in the SDA – the degree of care, diligence and skill of a person of ordinary prudence and the conduct of his or her own affairs (section 32(7)) or, if receiving compensation in the business of managing the property of others (section 32(8)). However, recent cases have held that the higher standard does not automatically apply when a person claims compensation.
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Edward Olkovich (BA, LLB, TEP, and C.S.) has successfully resolved many estate disputes involving powers of attorney and capacity issues. These included contested court applications under Ontario’s Substitute Decisions Act, 1992. Ed is a nationally recognized author and estate expert. He is a Toronto based Certified Specialist in Estates and Trusts and the author of seven estate books. © 2013
Posted In: Powers of Attorney On: September 18th, 2013