Power of Attorney Responsibilities Ontario: Duties, Compensation, and Record-Keeping

You're a Fiduciary, Not Just a Helper

When you accept an appointment as someone's attorney under a Continuing Power of Attorney for Property (CPOA) in Ontario, you're taking on a strict fiduciary role under the Substitute Decisions Act, 1992. That's a legal relationship with specific obligations — not an informal arrangement where you help out as needed.

As a fiduciary, you must act honestly and in good faith, exercise the degree of care and prudence that a reasonable person would apply to their own affairs, and always prioritize the grantor's interests over your own. These aren't suggestions. They're enforceable legal duties, and failing to meet them can expose you to personal liability, court-ordered removal, and in cases of deliberate abuse, criminal prosecution.

The Core Duties of a Property Attorney

Manage the grantor's property for their benefit. Every financial decision — paying bills, managing investments, handling real estate — must be made for the grantor's benefit, not yours. You can't use the grantor's funds for your own expenses, invest their money in your own business, or transfer their assets to yourself unless the POA or the SDA permits it under the applicable rules.

Keep the grantor's property separate from your own. You must keep the grantor's funds separate from your personal accounts and avoid commingling them, even if you track every dollar meticulously.

Keep detailed records of every transaction. This is the duty most attorneys underestimate. Under Part I of the SDA, you must maintain a continuous ledger recording every receipt, disbursement, and investment transaction you handle on the grantor's behalf. Each entry should include the date, amount, reference number, source or recipient, and purpose.

Encourage the grantor's participation. If the grantor still has some capacity, you should involve them in financial decisions to the extent possible. The POA doesn't strip the grantor of their rights — it supplements them.

Account for your management. Any interested person — a beneficiary, family member, or the grantor themselves — can apply to the Superior Court of Justice for a formal "passing of accounts." This is essentially a judicial audit where you present your transaction ledgers for court review. If you can't produce complete records, the court will draw adverse inferences.

Statutory Compensation Under O. Reg. 26/95

Ontario Regulation 26/95 establishes a default compensation formula for attorneys for property. Unless the CPOA specifically prohibits compensation or sets a different formula, you're entitled to:

• 3% on capital and income receipts — this applies to all money coming into the grantor's estate while you're managing it (pension deposits, investment returns, sale proceeds, rental income)
• 3% on capital and income disbursements — this applies to all money going out (bill payments, care facility fees, tax payments, purchase costs)
• 0.6% annual care and management fee — calculated on the average value of the grantor's assets under your management during the year

For example, if you manage a parent's property worth $500,000 for a year, receive $60,000 in pension and investment income, and pay out $48,000 in living expenses and care costs, the statutory compensation would be:

• Receipts: $60,000 × 3% = $1,800
• Disbursements: $48,000 × 3% = $1,440
• Care and management: $500,000 × 0.6% = $3,000
• Total: $6,240 for the year

The grantor can override these rates in the CPOA document itself — setting a fixed annual fee, reducing the percentages, or prohibiting compensation entirely. If you believe the statutory formula under-compensates you for unusually complex work, you can apply to the court for approval of higher compensation, but the burden is on you to justify it.

Personal Care Attorney: Different Rules

If you're an attorney under a Power of Attorney for Personal Care (POAPC), the compensation picture is starkly different. There is no statutory right to compensation for personal care attorneys in Ontario. The SDA simply doesn't include a fee scale for this role.

If you want compensation for personal care work, you need a court order. This creates an asymmetry that confuses many families: the property attorney has an automatic right to take fees from the grantor's assets, while the personal care attorney — who may be doing equally demanding work — has no such right.

Some families address this by including a compensation clause in the POAPC document itself, but the enforceability of such clauses hasn't been fully tested in Ontario courts.

What Happens When Things Go Wrong

Passing of accounts. Any beneficiary or the OPGT can apply to the Superior Court to force a formal review of your management. The court filing fee is $432. If the court finds irregularities — missing funds, self-dealing, inadequate records — you can be ordered to repay the estate, forfeit your compensation, and pay the legal costs of the person who brought the application.

Removal. The court can remove you as attorney if you've breached your fiduciary duties, become incapable, or if your continued appointment is no longer in the grantor's best interest. Removal proceedings can be expensive for all parties, with legal fees varying widely by the dispute.

Criminal liability. Using a POA to steal from the grantor, forge transactions, or commit fraud is a criminal offence. Financial abuse of a vulnerable person under a POA is prosecuted seriously, particularly when the victim is elderly or incapable.

The Ontario Power of Attorney Kit includes a record-keeping ledger template, the complete compensation calculation methodology, and a guide to the fiduciary standards you need to meet — structured so that if a passing of accounts is ever requested, your documentation is already court-ready.

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