Quick answer: An attorney under a power of attorney in British Columbia is a fiduciary. Section 19 of the Power of Attorney Act requires them to act honestly and in good faith, to use the care and skill of a reasonably prudent person, to stay within their authority, to keep the adult’s property separate from their own, and to keep records. Acting in the adult’s best interests is the standard.
The case, Robillard v. Robillard Estate, 2015 BCSC 1417, highlights the responsibilities of a power of attorney, and the potential for a dishonest person to abuse that role.
Marc Robillard took it upon himself to care for his elderly mother, who suffered from Alzheimer’s, for several years before and after she entered a care home. He also had an enduring power of attorney prepared with a notary. Marc had one sibling who was also a beneficiary of their mother’s will, Suzanne, who lived in Mexico.
During the time his mother was in care, Marc withdrew a total of more than $90,000 from her account. He claimed this was for various expenses of his mother’s, as well as the cost of maintaining and operating his vehicle. Marc did not keep records or receipts of these expenditures.
After his mother died, Marc did not inform the bank of her death for some 12 months. During that time he withdrew more than $150,000 from her account. Eventually the bank insisted that Marc obtain a grant of probate. He was required to tell his sister about the application for probate, but he did not do this. The court granted probate and named Marc as executor.
In his application for probate, Marc stated that the gross value of the estate was $194,129. This included the $150,000 he had taken out, but not the other sums he’d withdrawn over the years. He then wrote to his sister to tell her that her share of the estate came to $29,704, in accordance with the will, but he did not provide her with a copy of the will. In any event, the will divided the estate equally between the siblings. Suzanne told Marc that she expected the will to be equally divided and asked him to account for the total value of the estate.
Marc challenged the will under the Wills Variation Act. Suzanne counterclaimed for an accounting of the money Marc had withdrawn from the mother’s account, and for an equal division of the estate as the will specified. The law under the Power of Attorney Act and the Power of Attorney Regulation requires a person acting as power of attorney to act in good faith, to keep their property separate from that of the person who made the power of attorney, and to maintain records. It also terminates an enduring power of attorney upon the death of the person who made it.
The court found Marc’s testimony regarding the way he handled his mother’s money, and why he first did not communicate with Suzanne and then later tried to tell her that $29,704 was her share of the estate “as set out in the will” showed dishonesty. The court found Marc unentitled to contest the will on the basis of a moral obligation. The deceased owed no legal obligation to either of her children, as they were both financially independent, and she discharged her moral obligation to them through the equal division of her estate. Marc showed devotion to his mother in her later years, but this arose out of his own choices rather than her need. The court calculated the total value of the estate and ordered that Suzanne was entitled to one half the total. Marc was also required to pay the estate back for the money he had taken out, plus interest.
What the law actually requires of an attorney
The case above turns on duties that are written down, not left to conscience. In British Columbia, the Power of Attorney Act, RSBC 1996, c. 370, sets out what a person acting under a power of attorney must and must not do. An attorney manages someone else’s money and property, often at a point when that person can no longer check on them, so the law holds the role to a high standard.
The core duties under section 19
Section 19 lists what an attorney has to do. They must act honestly and in good faith. They must exercise the care, diligence, and skill of a reasonably prudent person. They must act within the authority the document actually gives them — a power of attorney is not a blank cheque. They must keep the adult’s property separate from their own. And they must keep records of what they receive and spend on the adult’s behalf. Under section 19(2), an attorney must act in the adult’s best interests, taking into account the adult’s current wishes, known beliefs, and values.
An attorney is a fiduciary
Above those specific rules sits a broader one: an attorney is a fiduciary. That means they must put the adult’s interests ahead of their own and must not use the position for personal benefit. Spending the adult’s money on yourself, mixing their funds with your own, or helping yourself to assets you expect to inherit are the kinds of conduct the fiduciary duty forbids. The attorney in the case above did several of these things and was ordered to repay the estate with interest.
An enduring power of attorney: when it starts and when it stops
Most powers of attorney used for aging or illness are enduring. Under Part 2 of the Act, an enduring power of attorney keeps its effect after the adult loses mental capacity — which is the whole point of signing one while still capable. It does not, however, survive death. A power of attorney ends the moment the adult dies; from that point the estate is controlled by the executor named in the will, not the former attorney. Continuing to draw on the deceased’s accounts after death, as happened in the case above, has no legal authority behind it.
Records: the duty most attorneys overlook
The record-keeping duty is the one that catches dishonest and careless attorneys alike. An attorney should keep a clear account of every transaction — what came in, what went out, and why — with receipts for significant expenses. Without records, an attorney who is later asked to account cannot show that spending was for the adult’s benefit, and a court may treat unexplained withdrawals as money owed back to the adult or the estate. Keeping the adult’s funds in their own account, separate from the attorney’s, is part of the same discipline.
What happens when an attorney breaks the rules
An attorney who breaches these duties can be made to account for everything they handled, ordered to repay what they took, and removed. A family member or an executor can bring the matter to court, as the sister did in the case above. Because the attorney holds a fiduciary position, a court that finds dishonesty tends to resolve doubts against them, especially where the absence of records is the attorney’s own doing.
Frequently asked questions
What duties does a power of attorney have in BC?
Under section 19 of the Power of Attorney Act, an attorney must act honestly and in good faith, use the care and skill of a reasonably prudent person, act within the authority granted, keep the adult’s property separate from their own, and keep records. They must also act in the adult’s best interests, taking account of the adult’s current wishes, beliefs, and values.
Is an attorney allowed to use the adult’s money for themselves?
No. An attorney is a fiduciary and must not use the position for personal benefit. Spending the adult’s money on the attorney’s own expenses, mixing the funds, or taking assets is a breach of duty. A court can order the attorney to repay what they took, with interest.
Does a power of attorney end when the person dies?
Yes. A power of attorney, including an enduring one, ends at the moment the adult dies. After death, the estate is controlled by the executor named in the will. An enduring power of attorney continues after the adult loses capacity, but not past death.
What records does an attorney have to keep?
An attorney should keep an account of every transaction made for the adult — money received and money spent, with receipts for significant expenses — and keep the adult’s funds separate from their own. If asked to account later, an attorney without records cannot show that spending was for the adult’s benefit, and unexplained withdrawals can be treated as owed back.
What can family do if an attorney is misusing the role?
A family member or the executor can ask a court to require the attorney to account for what they handled. A court can order repayment, remove the attorney, and, where records are missing or dishonesty is shown, resolve doubts against them.
Disclaimer: The information on this page is general legal information about British Columbia law, not legal advice for any specific situation. Reading this page does not create a solicitor-client relationship. BC law changes, and the law and procedure that apply to any particular case depend on facts not covered here. For advice on your own circumstances, speak with a qualified British Columbia estate lawyer directly. Past results and illustrative scenarios do not guarantee similar outcomes in any specific case.