The person appointed by the Power of Attorney is acting improperly – what can I do?

  • If the granter of the Power of Attorney is no longer competent, you can apply to court to become the committee of that person.  The Power of Attorney dies once an order is made.

 In a recent case a man appointed two children from his first marriage as attorneys under a Power of Attorney.  They created a trust for him that mirrored his will, and moved most of his assets into it.  After his death his second wife claimed that the creation of the trust was improper.  Her objective was to move all the assets in the trust back into the estate of her deceased husband for her Wills Variation Act action.

The judge decided that the attorneys had acted properly, in accordance with the stated wishes of the donor.  They owed a duty of loyalty, prudence and good faith to the donor, but not to his wife.  An action is proper if a reasonable and prudent businessman would think that the proposal would benefit to the patient and his family given the known and foreseeable circumstances.  The goal of the attorney is the proper management and administration of the donor’s estate, and planning for the future is proper. 

If you need to become a Committee, or have questions about the proper use of a Power of Attorney, we can help.  Contact us.

Read the case:  Easingwood v. Cockroft

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