Power of Attorney - Part 5 - Hull on Estates and Succession Planning #186
Listen to: Power of Attorney - Part 5 - Hull on Estates and Succession Planning #186
This week on Hull on Estates and Succession Planning, Ian Hull and Suzana Popovic-Montag continue their conversation regarding compensation for attorneys and guardians of personal care.
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Ian M. Hull - Click here for more information on Ian Hull.
Suzana Popovic-Montag - Click here for more information on Suzana Popovic-Montag.
Power of Attorney – Part 5 -
Welcome to
Suzana Popovic-Montag: Hi and welcome to
Ian Hull: Hi Suzana.
Suzana Popovic-Montag: Hi there Ian. How are you?
Ian Hull: Great. Welcome back.
Suzana Popovic-Montag: Thank you very much.
Ian Hull: You were much missed. The solo podcasts aren’t the same.
Suzana Popovic-Montag: I appreciate you taking the bullet for us and keeping them going in my absence.
Ian Hull: All we can do is try.
Alright, well what we’d like to do is just finish off our discussion about the special type of compensation and that is, compensation for attorneys and guardians of personal care. And in our last podcast which you know only because you have seen it but weren’t participating in it, we were just sort of talking about the interesting difference between trying to get paid for that service as opposed to the traditional and conventional getting paid for as a Power of Attorney for Property. So we’re going to have a slide, fancy slide flash up at this point, we’re hoping.
There’s the last sort of five points, four points that we wanted to raise. The first one is…
Suzana Popovic-Montag: And the first one is that even though there is no statutory regulation that actually sets out what a Power of Attorney for Personal Care is entitled to for compensation like there is for a Power of Attorney for Property, that tariff amount that you’ve talked about previously on the podcast, that’s not a prohibition from a Power of Attorney for Personal Care being entitled to get compensation for the work that they do.
Ian Hull: Absolutely. Just because it’s not written down doesn’t mean you don’t get paid.
Suzana Popovic-Montag: That’s right.
Ian Hull: And that’s special because the Courts have really identified that in
Suzana Popovic-Montag: That’s right.
Ian Hull: Now I say globally, maybe not internationally but…alright, so that’s number one. Just because it’s not in the statute, that’s not a prohibition in and of itself. Now what’s the next one we’re going to talk about?
Suzana Popovic-Montag: The other one is that when it comes to a quantum of compensation, there really is an issue of reasonableness. Courts are going to look at what it was that you’ve done and whether or not your claim for that work is reasonable. And because they don’t have the tariff amount or those kinds of guidelines when it comes to compensating a Power of Attorney for Personal Care, they’re going to look at the big picture and the scope of the services that were actually rendered.
Ian Hull: And we also find that it’s useful to go back to what the Courts are most comfortable with in terms of quantifying compensation and that is the tests that are being used for Power of Attorney for Property. And that is, setting down, making sure we keep lots of goods records, making sure that we can identify it. And under the tariff Substitute Decisions Act there’s actually a care record you are compelled to make and continue to make and update as a Power of Attorney for Personal Care. So in so doing, it’s not a bad idea to add a column on that and talk about how much time that care took.
Suzana Popovic-Montag: That’s right because that really is, when it comes to quantifying the claim for compensation, if you can point to the number of hours that you spent doing something it’s so much easier for a judge to feel that they can allocate a value to that as opposed to just the nature of the work that you were actually doing.
Ian Hull: Alright, so it’s fairness and it’s compensation based on tangibles that also tie into the quantification of it. Well I think that was really all we wanted to talk about on the question of personal care payments at this point. We will revisit it as we talk a little bit about some of the compensation issues that will arise later on.
But staying in our theme and our series on Power of Attorney and the kinds of things that clients can expect to have to address and consider when they might come to see a lawyer and might come to see us. And in this case, let’s talk a little bit about…maybe a bit of a non-contentious element and that is, what is going to be expected of us as the Power of Attorney? What are our duties? What are our obligations once we take on this job in either form? Either take it on as having been appointed by a Power of Attorney under a Power of Attorney document, or being appointed by virtue of the Court Order appointing you as a guardian or as a committee or however you call it in whatever jurisdiction you’re working out of. What are some of the obligations we’re going to have and duties?
Suzana Popovic-Montag: Well the first one, Ian, and the clearest one, is the duty to keep records. Even if you’re a Power of Attorney for Property, you’re going to make sure that you’re keeping track of everything that you do for that individual. And if it’s personal care stuff, you’re going to keep a log as we just talked about of the kinds of services that you’re providing. Because at the end of the day, that’s how you can quantify the value of the work that you’ve done.
Ian Hull: And we’ve said it before and we’ll say it again – every receipt matters. Every piece of paper matters when you’re going to use someone else’s money. And it’s no different as I tell my kids when they go to McDonald’s and I say get a receipt and they look at me funny. And it’s like, you know what, you’ve got to learn that you take $20 and where did the $20 go? Now they tend to keep the rest of the $14 that’s left, which is a struggle in its own right. But the point is that that’s the kind of expectations the Courts have literally down to the wire in terms of keeping receipts.
Suzana Popovic-Montag: And Ian, when we say that, we have to really underscore why that’s so important. Because at the end of the day, if you can’t back up the entry in the accounting – that’s sort of another further requirement of an attorney at the end of the day is to actually pass accounts or prepare accounts that could be passed – if you can’t substantiate the payment that’s been made out of an incapable person’s funds, then you’re going to have to pay that money back. And that’s about as crass as you can be about it. So that’s why every piece of paper, every piece of proof of the payment and the reason for the payment is really quite crucial.
Ian Hull: It’s absolutely vital and I’m guessing I’m going to have a collection problem with my kids on their $20 that they’ve swiped from me. But that’s so true.
Alright, before we continue on with this and we’re going to really flush out some more of the duties as we move on with our podcasts in this mini series we’re working on, I did want to talk a little bit about a book that we’re having some fun enjoying as well, and it’s called The 101 Biggest Estate Planning Mistakes. It’s by Herbert Nass, N-A-S-S. Now this is a fun book because this is…well it’s a
So let’s come to our next podcast. Let’s keep working through some of these duties and expectations - what a client is going to be when they sit across the desk from us, when they come to see us. What does the client want to learn about those duties and expectations so that they can take in a way of tangibles in that regard?
So thanks so much. Welcome back.
Suzana Popovic-Montag: Thank you Ian. I’m looking forward to it.
Ian Hull: And I appreciate that.
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