One of the main responsibilities of someone acting under a Power of Attorney (a “POA”) is to keep good records of how they manage the finances and property of the person they are helping. They may have to provide a formal report, called an "accounting," if requested by the Public Guardian and Trustee, a court, or when their authority under the POA ends. If the person who granted the POA still has mental capacity, they can ask for an accounting themselves. However, if they lose capacity, then an interested party or the Public Guardian and Trustee Office can request an accounting. An interested person could include someone named in the POA, a family member, a legal guardian, the executor of the estate, or a beneficiary.1
In so far as the attorney is required to provide an accounting, then it must be in the prescribed form and verified by affidavit - essentially, a sworn statement saying the records are accurate. It is essentially a “bookkeeping and reporting exercise.”2 The purpose of this reporting is to protect vulnerable adults and ensure that those with POA powers are acting responsibly and in the best interests of the person they are helping.
If there is evidence of wrongdoing - whether found through a report or otherwise—the person with POA can be held accountable through legal action.3 This is called an “action to account,” which is a legal process where they might be required to make the grantor or their estate “whole” to the extent there was any misuse of funds or property. For example, if the person with authority under a POA gave away property they should not have, a court might reverse that decision or order them to pay back the value of the property to the person they were supposed to be helping or to their estate if that person is deceased.
Asking for a formal accounting can be an important first step in identifying any issues, and sometimes, it may require the court to get involved through court application, summary proceedings or a trial of the issue. For more information on accountings and actions to account, consult one of our lawyers with expertise in the area.
For additional information on decision-makers and their obligations, please consider the following articles:
The Accountability of a Power of Attorney: Preventing and Detecting Financial and Personal Abuse
Termination of Enduring Power of Attorneys
This article,Power of Attorney Accounting and an Action to Account is part of a series relating to the issues of Estate Planning in Saskatchewan, written by Saskatoon associate Paige E. Van de Sype. Follow us on LinkedIn and get notified when the next article in this series is published. This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have.
Footnotes
1. This list is non-exhaustive. For a more fulsome list, please see The Power of Attorney Act, SS 2002, c P-20.3, s 18 and 18.1.
2. Thompson v O'Hara, 2016 SKCA 83 (CanLII) at para 29.
3. National Trust Co. v H & R Block Canada Inc., 2003 SCC 66 (CanLII) at para 34, [2003] 3 SCR 160; Thompson v O'Hara, ibid at para 24; The Powers of Attorney Act, supra note 1; The Powers of Attorney Regulations, RRS, c P-20.3, Reg 1.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
