The Money Is Not Yours!

An attorney for property is the person named in a Power of Attorney document (POA), to manage another person’s property. The attorney is not usually a lawyer – the term attorney just means the person with legal authority.

When attorneys for property are managing another person’s assets, they must use those assets for the person’s benefit, not for their own benefit. This is the most basic rule attorneys for property must follow.

The attorney is considered by law to be a “fiduciary” and so, owes “fiduciary duties” to the person. These are explained below.

Power of Attorney Fiduciary Duty

What is a fiduciary? A fiduciary is someone in a special relationship to another person. A fiduciary typically has great power and, at the risk of sounding cliché, with that power comes great responsibility. A fiduciary relationship has been found to exist between for example: doctor and patient, parent and child, teacher and student, accountant and client, corporation and shareholders, and executor and the estate.

A fiduciary is someone who is trusted to look after and prioritize the needs of another person. There are many duties that come with the position of fiduciary including the duty of loyalty, the duty to prefer the other person’s interests, the duty not to personally benefit from the position, the duty to act in good faith, and the duty of competence, among others.

In the Power of Attorney context, the attorney for property has a fiduciary duty to use the person’s assets only for the benefit of the person, and only as permitted by law. That is precisely why the attorney was entrusted with the position in the first place.

Power of Attorney Examples of Misuse of Assets and Authority

Some of the most common ways attorneys misuse their authority and use the person’s assets for their own benefit are:

• Paying for the attorney’s own living, entertainment, transportation, or shopping expenses using the person’s money
• Paying themselves compensation in excess of what the law deems fair compensation
• Transferring the person’s assets (bank accounts, investment accounts, house, cottage, vehicle) into joint names with the person, or directly gifting the person’s assets to themself
• “Gifting” the person’s assets to the attorney’s children or spouse

As Attorney for Property, You Can Be Sued For Benefiting Yourself

The attorney who does these things risks being accused of breaching their fiduciary duties. They attorney can be found by a court to be legally and financially responsible to repay the person or the person’s estate.

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