Being the attorney of a parent or spouse is a role of trust, but also of legal responsibility. An attorney who knows his duties protects the grantor, and also protects himself against future claims by family members.
The main duty: act according to the grantor’s wishes
The attorney acts according to the advance directives in the document. Without a directive, he must try to understand what the grantor wants now, even if he can no longer decide himself. If that is impossible, he acts according to the grantor’s earlier wishes, as reflected in his worldview and way of life, and only failing all that, according to his best interests. On drafting directives see advance directives.
Documentation and transparency
- Keep a record of significant decisions and the reasons for them.
- Manage the grantor’s money separately from his own, and keep receipts.
- Report to the informed person and others, if the document requires it.
What is the attorney not allowed to do?
- Perform acts that are personal by nature, such as voting, giving a get (Jewish divorce) or making a will on the grantor’s behalf.
- Act against an advance directive when the grantor understands the matter and asks to depart from it.
- In a significant personal or medical decision, act against the grantor’s objection at that moment, unless the document explicitly provides otherwise.
- Enter a conflict of interest, such as buying the grantor’s property or transferring money to himself, unless explicitly permitted or approved as required.
Fees and expenses
An attorney is entitled to reimbursement of reasonable expenses incurred for the grantor. A fee for the role itself is paid only if the grantor set one in the document, including its amount.
What happens after the grantor’s death?
The power of attorney ends on death. The law allows the attorney, within 90 days and without court approval, to pay ongoing payments for services provided during the power of attorney, reasonable funeral and mourning expenses, and to continue ordinary management of a rented property or business. Beyond that, the assets are handled under inheritance law. See continuing power of attorney and a will.
When should you go to court?
If an advance directive is hard to carry out, or there is doubt whether an action is permitted, the attorney may ask the court for instructions. Better to ask before than to explain afterwards.
Where do you go from here?
Every person and every family is different, so a good continuing power of attorney is built around the assets, the family relationships and the wishes of the person granting it. At Paz Israel & Co. Law Office we draft continuing powers of attorney and advance directives, and we also support families when the document comes into force. For more information see our continuing power of attorney page, or contact us to schedule a meeting.
This article provides general information, is correct as of the time of writing, and does not constitute legal advice or a substitute for reviewing your specific circumstances.