Attorneyship Accounting With a Capable Grantor
There has been much written on the accounting duties of attorneys, and several cases address the issue. One such case may be helpful to those attorneys who find themselves being called to account by third parties notwithstanding that the grantor of the power of attorney is mentally capable and has not requested any accounting.
In Koperniak v. Wojtowicz the applicant was the grantor’s daughter, who made accusations regarding the attorneys’ management of her mother’s financial affairs. The attorneys were the grantor’s sons, and there was evidence that the grantor was content to have them handling her financial affairs.
The Court considered the evidence and the applicable legislation (s. 42(4) of the Substitute Decisions Act) that lists the persons who may apply to have attorneys pass their accounts. Despite the basket clause that states “any other person, with leave of the court” can apply to have attorneys’ accounts passed, the Judge did not agree that leave ought to be granted in this case, particularly as the grantor was capable and able to confirm her wishes, and as no evidence was found to have been advanced displaying the necessity to pass accounts. While the brothers had used their powers to sign a small number of cheques, the Judge held that this fact did not automatically give rise to an entitlement to a passing. Accordingly, the application was dismissed.
You will be able to find more on this case and other topics covered at our firm’s recent breakfast series.
Thanks for reading and have a good day,