As the population ages, banks and brokerages increasingly find that their customers are acting as attorneys for property for their elderly parents. This is giving rise to potential issues arising from the Accredited Investor rules in National Instrument 45-106. These rules can apply to securities that are sold without a prospectus (referred to as an "exempt market sale" or a "private placement" of securities). A common scenario is that the attorney for property qualifies as an accredited investor but the elderly parent does not. The attorney quite naturally wants his parent to have the same quality of financial advice as he does, and opens a power of attorney trading account with his broker. This is the point at which caution is required. The beneficial owner of the account is the person who granted the power of attorney, and it is she who must be an accredited investor in order for an exempt market purchase be made from that account. That is, even though the son who acts as an attorney for property is an accredited investor, he cannot make the exempt market purchase using his mother's assets unless she is also an accredited investor. What he can do is open a managed account, on behalf of his mother, with a registered portfolio manager who is given discretion to make investment decisions, and who may make an exempt purchase of securities on behalf of the account. Before opening such an account it is necessary to confirm both that the power of attorney document (and relevant provincial statute) give the attorney the authority to grant discretionary trading authority to a portfolio manager, and that the discretionary account is appropriate for a fiduciary caring for a vulnerable, mentally incapable older person. It will then be the portfolio manager's obligation to determine whether the "exempt purchase" is a suitable investment for that account. Brokers who are acting for millennial and baby boomer customers should consider establishing an intake process for power of attorney accounts, and may wish to offer managed account services to address situations such as that discussed above. Properly implemented, such managed accounts can allow the financial services industry to better meet the needs of an aging population.
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