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Listen to: Power of Attorney - Part 6 - Hull on Estates and Succession Planning #187

This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the importance of confidentiality when acting as Power of Attorney.

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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 6 - Hull on Estate and Succession Planning #187

Posted on November 18, 2009 by Hull & Hull LLP

Welcome to Hull on Estates and Succession Planning, a series of podcasts hosted by Ian Hull and Suzana Popovic-Montag.  The podcast you’re listening to will provide information and insights into estate planning in Canada.  From the offices of Hull & Hull in Toronto, here are Ian and Suzana.

Suzana Popovic-Montag:  Hi and welcome to Hull on Estate and Succession Planning.  You’re listening to episode 187 of our podcast on Tuesday, November 17^th, 2009.

Ian Hull:   Hi Suzana.

Suzana Popovic-Montag:  Hi there Ian.  How are you?

Ian Hull:   I’m great, and yourself?

Suzana Popovic-Montag:  I’m well, thank you.

Ian Hull:   Good.  We’re back on a roll.  Second one since your lay-off of what seemed like an interminable amount, no doubt, to the audience of me doing some solo podcasting.  Alright, coming back to the duties and obligations of a Power of Attorney, we talked on the last podcast at the end of it about the accounting obligations and your great analogy about paying it back.  And if you mess up, you’re going to have to pay it back.  The next sort of topic that we want to dovetail into it of what our clients are going to expect on their obligations, this duty to account.  And the next one, of course, is the question of…

Suzana Popovic-Montag:  Confidentiality.  And it really is a matter of making sure that you are keeping the person’s affairs confidential.  Even though you’re acting as their replacement or their substitute decision maker, you’ve got to maintain that air of secrecy in a sense in terms of their particular affairs.  I’m not saying secret from others but secret from people who could possibly compromise that confidentiality.

Ian Hull:   And that confidentiality is unwavering.  And one of the things that I find…I see clients who are obligated…under the Ontario Act, you’re obligated to get a copy of the Will.  If you take over an incapable’s affairs, you’re obligated to look at the Will in Ontario because you need to know what the expectations are on distribution.  So you if you can avoid it, you can accommodate the gifting in the Will as well as looking after the individual, although looking after the individual is paramount.  But this whole question of what happens then when an attorney looks at the Will and what do they do with that information is a tough problem and one that underscores the need for confidentiality obviously.

Suzana Popovic-Montag:  And we’ve seen instances, certainly in our experience, where we’ve had beneficiaries ask to see copies of the Will of the attorney and they come to us seeking the advice as to what they should do in those circumstances because it’s a very difficult decision.

Ian Hull:   And unquestionably certainly in Ontario it’s no talking, no disclosing the provisions of the Will, but there may have to be some behaviour modification.  For example, if the Will allows for a gift of the cottage to my niece Betty and the incapable individual has lots of money so it’s not a question of needing the cottage to sell the cottage to make ends meet; it’s a question of maybe, to the extent that the attorney can accommodate that request and accommodate that wish, they may want to.  And so they may want to drill down on the cash, preserve the cottage because they know the cottage is supposed to go to the niece.  That brings with it its own tensions, though…

Suzana Popovic-Montag:  For sure.

Ian Hull:   …because those who were going to receive the cash might say well, why didn’t you sell the cottage?  And those are the kinds of discussions that we need to walk through with our clients, balancing interests and all of that sort of stuff in that scenario with the paramount concern as always…the cases keep coming back to it, the Act keeps coming back to it…is what is best for the incapable.

Suzana Popovic-Montag:  And that situation in particular is a difficult one, Ian, because if you’re faced with this duty of confidentiality and you have an incapable person who, for instance, has got to move into a home, then beneficiaries or family members might be questioning an attorney as to why a cottage is being maintained in Muskoka if in fact that individual can never benefit from it.  So you’re walking sort of a fine line there…

Ian Hull:   Yes.

Suzana Popovic-Montag:  …in your duties.

Ian Hull:   And the answer would be, come see a good lawyer, because that’s not one that we can solve necessarily on a podcast.

Suzana Popovic-Montag:  Not easily.

Ian Hull:   And a lot will depend on circumstances and so on.  We’re not trying to avoid the answer.  It’s just that the truth is that a Court is going to sit back and look at all of the factors before they’re going to come down hard one way or another...

Suzana Popovic-Montag:  That’s for sure.

Ian Hull:   …should a beneficiary complain.  Well thanks so much.  Welcome back and...

Suzana Popovic-Montag:  Thank you Ian.  I’m looking forward to it.

Ian Hull:   …appreciate that.

You have been listening to Hull on Estates and Succession Planning by Ian

Hull and Suzana Popovic-Montag.  The podcast that you have been listening

to has been provided as an information service.  It is a summary of current

issues in estates and estate planning.  It is not legal advice and you are o

reminded to always speak with a legal professional regarding your specific circumstance.

To listen to other Hull & Hull podcasts, or leave any questions or comments, please visit our website at hullestatemediation.com.