Author: Mills & Mills LLP
Acting as an Attorney under a Power of Attorney for Property or Personal Care is a great deal of work and responsibility. If you’ve been appointed as an Attorney, there may be circumstances under which you wish to resign your position. As Attorney, you may resign at any time, however the procedure to do so differs depending on whether you have begun to act under the Power of Attorney.
If you are the named Attorney and you have not begun to act under the Power of Attorney, then there are no special steps to resign. Your resignation should be in writing and should reference the date that the Power of Attorney was signed. The resignation should be delivered by a secure method to the grantor of the Power of Attorney, and confirmation of receipt should be obtained.
If you have begun to act under the Power of Attorney, then the Ontario Substitute Decisions Act sets out the procedure to properly resign. The following requirements are applicable to both Attorneys for Property and Personal Care except where noted.
If you are resigning as Attorney, you must deliver a copy of the resignation to the following people:
- the grantor;
- any other attorneys under the power of attorney;
- the person named by the power of attorney as a substitute Attorney to you, if applicable.
Additionally, you must deliver a copy of the resignation to the grantor’s spouse or partner and other relatives of the grantor who are known to the resigning Attorney and who reside in Ontario if the following conditions are met:
- you are of the opinion that the grantor is not capable of managing property (applicable only to Powers of Attorney for Property), and
- the Power of Attorney does not provide for a substitute Attorney, or the named substitute Attorney is unwilling or unable to act.
As resigning Attorney, you must also make “reasonable efforts” to notify persons with whom you previously dealt on behalf of the grantor and with whom further dealings are likely to be required on behalf of the grantor. For example, if you had registered the Power of Attorney with the grantor’s bank and were managing the grantor’s bank account, you must notify the bank of your resignation. Similarly, if you are an Attorney for Personal Care dealing with a care facility on behalf of the grantor, you must notify the facility of your resignation.
If the Power of Attorney document does not provide for a substitute Attorney, then the Power of Attorney will be terminated once the Attorney resigns.
If you are named as an Attorney and wish to resign, you should contact a lawyer to ensure that your resignation is properly effected and you have met all your legal obligations.