An attorney for property is granted considerable authority over the grantor’s financial affairs. Although this authority operates during the grantor’s lifetime, its exercise can materially impact the value and composition of the grantor’s Estate.
This raises a practical question: does an attorney for property have an obligation to seek out and review the grantor’s Will?
Statute and case law demonstrate that, in certain circumstances, the answer is yes.
The Statutory Framework
Under Ontario’s Substitute Decisions Act, 1992 (the “SDA”), an attorney for property:
- Is a fiduciary, required to act diligently, honestly, and in good faith for the grantor’s benefit;
- Has broad authority over the grantor’s property;
- Cannot make or alter a will or other testamentary dispositions; and
- Must consider the grantor’s prior intentions in certain contexts, such as gifting decisions.
The SDA does not impose a default obligation for an attorney for property to locate the grantor’s Will. However, the statutory focus on the grantor’s intentions strongly informs how the attorney must exercise their role.
Why the Will Matters
A Will has no operative effect during the grantor’s lifetime. However, it remains the most formal expression of the grantor’s intentions regarding the ultimate distribution of their property.
Decisions made by an attorney can dramatically undermine or make it impossible to act upon the provisions of the Will. As a result, courts have been attentive to situations where inter vivos conduct under a Power of Attorney alters the anticipated distribution of the Estate.
The Effect of Incapacity
Section 33.1 of the SDA creates an obligation for a guardian of property to make reasonable efforts to determine whether the incapable person has a Will and the provisions of the Will.
Section 38(1) of the SDA states that section 33.1 applies to an attorney for property acting under a continuing power of attorney if the grantor is incapable of managing property or has reasonable grounds to believe that the grantor is incapable of managing property.
A grantor’s incapacity to manage property results in a positive obligation for an attorney for property to make reasonable efforts to seek out the grantor’s Will.
Is There an Obligation to Seek a Copy of the Will?
Generally, there is not an express obligation for an attorney for property to obtain a copy of the grantor’s Will. However, there is an express obligation when the grantor is incapable of managing property.
Practical Takeaways
For attorneys for property and advising lawyers:
- Take into consideration the (in)capacity of the grantor.
- Ascertain whether a Will exists.
- Review it where accessible and relevant.
- Consider whether decisions undermine the grantor’s testamentary intentions.
- Remain mindful of potential conflicts of interest.
- Maintain detailed records in anticipation of scrutiny.
- Seek direction from the Court where appropriate.
Conclusion
While there is not a general obligation for an attorney for property to seek the grantor’s Will, it is a prudent step in some circumstances to ensure that the testamentary plans of the grantor are not undermined.