Power of Attorney - Part 4 - Hull on Estates and Succession Planning #185
Listen to: Power of Attorney - Part 4 - Hull on Estates and Succession Planning #185
This week on Hull on Estates and Succession Planning, Ian Hull discusses the difficult topic of arranging payment for the Power of Attorney.
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Power of Attorney – Part 4 -
Welcome to
Ian Hull: Hi and welcome to
Hi, I’m Ian Hull and I’m here to do one last solo podcast hopefully this week. Again, we aren’t able to have Suzana join us as a result of her bad cold and she’s saving her voice for all her good clients.
I wanted to talk about another offshoot of the whole question of Power of Attorneys and the kind of litigation and some of the contentious issues that arise and that is the question of getting paid. I know it may sound a bit crass and certainly a bit difference than the last couple of podcasts where we were focusing on the question of capacity. Now capacity, of course, is fundamental and we’re going to continue to keep coming back to that age-old question, that age-old difficulty of determining capacity (a) because of it’s importance in the law; and (b) because of its complexity. But I thought today we would talk a little bit about what it is about getting paid.
Now getting paid are two components: one is getting paid as personal care attorney and one is getting paid as Power of Attorney for property. We’ve talked a little bit about getting paid for property before, so I want to just try to focus today’s podcast on getting paid for being a personal care attorney. Now one might at first blush say, well who would get paid for that job? Remember, stepping back, the role of Power of Attorney for personal care or in our case, guardian if you’re going to Court to get that appointment, it’s the health care role. It is the day-to-day care role. It is the role that really has nothing to do with the money directly. Now obviously care, health care decisions are going to be reflected and impacted by whether or not there is enough money. Easy example is, someone could decide an individual who is incapable requires 24 hour care with regard to all of their mental and physical ailments. The problem might be they don’t have the resources to pay for that care. So there, the Power of Attorney for personal care, the Power of Attorney for property have to work together, work out a budget, determine maybe what facility is best, can they stay at home at that level of care with the kind of expense, those kind of decisions.
Now those are tough decisions and we all know the personal care attorneys have a tremendous amount of work ahead of them, and work that is often done at no pay. Well recently, and we’re going to put in the show notes, there’s a decision called Re Brown where the Court has started to in Ontario consider what about getting paid for personal care work. We often will have that delegated to some caregivers and nurses and so forth. But what if you’re appointed personal care attorney? How can you get paid?
Well they looked at that in the Brown decision and they went through it and they carefully considered it and ultimately held that there is no reason not to pay. Now that’s a double negative. The short answer is, you can get paid for your work as personal care attorney. How do we go about it? What are some of the Court’s considerations? Well I’m going to talk a little bit about those today as best we can, given the time.
First and foremost, the Court said this: there is no statutory prohibition against such compensation. So we know from property attorneys and guardians for property that there’s a regulation that specifically and expressly says that they get paid. And they actually set a tariff and they use about the 3% in, 3% out and 3/5ths of 1% for the care and management. That’s in the regulation. Well, in Brown, the Court reminded us, and quite accurately says there is actually no prohibition. There may be no regulation like with the Power of Attorney for property…for guardianship of property I mean…but there is no prohibition from getting that compensation. So we got over the first hurdle, and that is, there’s no statutory prevention to get paid, which is a crucial. That may have been a non-starter right away and Re Brown got us over that.
The second thing the Court said is that the Court can award or fix payment of compensation regardless if the legislature has not passed a statute or regulation providing for it. Now again, we have a regulation for guardianship of property - how you’re going to get paid and on what basis. And it was argued in Re Brown that there’s nothing like that. Now the statute may not have a prohibition, but there’s no regulation so how can we fix a rate? How can we know how much to get paid as Power of Attorney for personal care? Well the Court said stop, I don’t care if there’s no regulation. I think that that is not a prohibition against it. Just because there’s no regulation doesn’t mean you don’t get paid. So that was number two.
Number three, the Court pointed out that Section 32(2) of the Substitute Decisions Act does not oust the application of Section 60(1) of the Trustee Act as a basis for awarding compensation for a guardian. Now, without getting too technical in terms of the provisions of the Act, the long and the short of it is the Court said the Trustee Act says you can pay fiduciaries, so you should be able to pay fiduciaries and the Court agreed with it.
The fourth comment that the Court made in respect of coming to its conclusion to pay these hardworking personal care attending people, the Court can award compensation for services rendered by a committee to an incapable person if there’s sufficient evidence about the services provided as well as evidence from which a reasonable amount could be fixed for compensation. So the Court said, give us some detail. Don’t just come to Court and say I was a dutiful, hardworking caregiver, so to speak, in my role as guardian of personal care. Give me some detail of your work. So we always try to remind our clients, keep good careful records, keep a diary of your efforts so that you have something to come to the Court with to (a) set the amount of work, and identify how much work you did and then (b) you start to set a rate for those hours of work. And it’s much the same as property Powers of Attorney. We say the same thing. It’s essentially keep a docket. Now we’re required to keep a diary of our efforts as a personal care attorney in any event, so they can then be turned into and arguably a very effective tool in respect of how one could get paid for compensation as the Power of Attorney for personal care.
Alright, those are just a few of some of the reasons why we came to the final conclusion and hopefully when we get Suzana back, we’re going to finish off this topic or continue to work it through, because we know the conclusion is there. But it’s always helpful to know the parameters as to why the Court came to those conclusions, so that we can then go forward, plan and organize our efforts as Powers of Attorney for personal care, to make sure that we are at least able to ask to get paid. Whether we choose to get paid or not is a different thing. But nothing can be taken away from an attorney who carefully documents their work in any event, and in some cases, you might want to get paid for it too.
So that’s my thinking in terms of that aspect of it. Getting paid as a personal care attorney and as a guardian of personal care. And we’ve got some other considerations that the Court looked at in Re Brown which we’ll hopefully canvass some more with Suzana when she’s back in good health.
So thank you very much for joining us today. Again, I welcome you to take a look at our web page at hullandhull.com and we’re very excited. We’re weeks away from launching our new look and new, accessible web page that we hope people will find a little easier to navigate through because we just find that we have so much content that we want to make it easier for people to get into the content and drill down into our page.
So thanks again for joining us and we look forward to seeing you next week.
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