How Things Change Before and After Incapacity
Continuing Powers of Attorney for Property provide that the Attorney for Property is to act on behalf of the donor either before and/or subsequent to any incapacity (of the donor) to manage property.
If an Attorney for Property acts prior to incapacity to manage property on the part of the donor, he is "merely an agent and, notwithstanding the fact that the power may be conferred in general terms, the attorney's primary responsibility in such a case is to carry out instructions of the donor as principal." (Cullity, J. Banton v. Banton (1998), 164 D.L.R. (4th)(176).
If an Attorney for Property acts subsequent to incapacity to manage property on the part of the donor, the Attorney for Property has a considerably more onerous fiduciary duty: "In such a case, the attorney does not receive instructions from the donor except to the extent that they are written into the instrument conferring the power. The attorney for property must [instead] make decisions on behalf of the donor." (Banton, supra)
Although the Attorney for Property does not act subject to the provisions of the Trustee Act, the provisions of the Substitute Decisions Act (SDA) impose the typical obligations of a trustee on the Attorney for Property.
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