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Resigning as the Attorney for Property and/or Personal Care

Resigning as the Attorney for Property and/or Personal Care

By:

Posted November 12, 2020

In an earlier blog, I wrote about how to resign as estate trustee of a loved one’s estate. In this blog, I will be discussing how to resign as the attorney under a Power of Attorney for Property or Power of Attorney for Personal Care.

Acting as an attorney can be equally onerous as acting as an estate trustee. Some may even say that acting as an attorney can, at times, be more stressful, daunting, time consuming and last longer. It therefore comes as no surprise when clients approach us seeking advice on how to resign as attorney when the role becomes too challenging.

Fortunately, unlike an estate trustee, an attorney can resign at any time – that is, before they have begun to act or while they are acting, without requiring a court order. However, the procedure to resign differs depending on whether you have started to act under the Power of Attorney or not.

If you have not started to act as the attorney, it is advisable (although not legally required) that you resign in writing and deliver a copy of your resignation to the grantor of the Power of Attorney, any other attorneys named under the Power of Attorney, and any named substitute attorneys.

If, however, you have started to act at the attorney, you are required to deliver a written copy of your resignation to the following individuals:

  1. the grantor,
  2. any other named attorneys,
  3. any named substitute attorneys, and
  4. the grantor’s spouse and relatives who you know and live in Ontario, if you believe that the grantor is incapable of managing his or her property and there is no substitute attorney willing and able to act or no substitute attorney named in the Power of Attorney.

You are also required to make “reasonable efforts” to deliver your resignation to persons with whom you have dealt with in your capacity as attorney and with whom further dealings are likely to be required on behalf of the grantor. This can include a bank manager or financial advisor, in the case of a Power of Attorney for Property, or a treating doctor or administrator with a long-term care facility, in the case of a Power of Attorney for Personal Care.

It is important to note that your resignation is only effective once copies of the resignation are delivered to the persons that are entitled to receive it, and that a copy of the resignation is provided in an accessible format. Failure to deliver your resignation to any one of the persons who are entitled to receive a copy of your resignation may deem your resignation ineffective.

This blog post was written by Sarah Macaluso, a member of the Wills and Estates teams.  She can be reached at 613-369-0374 or at sarah.macaluso@mannlawyers.com.

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Sarah Macaluso

Sarah Macaluso

I practice exclusively in the areas of wills and trusts, incapacity planning, and estate administration. With every matter, I take the time to understand my clients’ wishes and needs and guide them through the estate planning process. I carefully explain complex options to clients and find solutions that preserve wealth and family harmony. In my estate administration practice, I assist individual and institutional executors with probating wills, administering estates, and preparing estate accounts.  I also regularly advise executors, trustees, and attorneys of their fiduciary duties. Born and raised in Hamilton, Ontario, I hold an honours degree in Business from McMaster University (summa cum laude) and a law degree from the University of Ottawa (cum laude). I was called to the Ontario bar in 2018.  Before joining Mann Lawyers in June 2020, I practiced in wills and estates with a mid-sized Ottawa firm. I currently sit on the Board of Directors of Villa... Read More

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