Can an Attorney Give Gifts or Pay Themselves in New Brunswick?

Managing an older relative's money is a position of trust. Questions about gifts, paying yourself for your time and mixing your own finances with theirs come up often, and so do worries from other family members who suspect something is wrong.

This article explains the general limits that apply to an attorney under a New Brunswick enduring power of attorney and the remedies that exist. Whether a particular gift or payment is proper depends on the document and the facts, so get advice before acting or making an accusation.

This article covers the law of New Brunswick.

The starting point: duties of an attorney

An attorney must act honestly, in good faith, with reasonable care and within the authority given. When the grantor lacks capacity, the attorney decides by looking in order at prior instructions, current wishes, the likely decision and then best interests.

These duties frame every question about gifts and payments. The money belongs to the grantor, and it is to be used for the grantor, not for the attorney's benefit.

Gifts and self-dealing

Whether an attorney may make a gift depends on what the document says and on whether the gift is consistent with the duties above. A gift to the attorney personally, or a transaction that benefits the attorney, deserves the most caution because it sits in tension with acting honestly and in good faith.

• Read the document for any wording that permits or restricts gifts.
• Consider whether the grantor made gifts in the past and would likely have wanted this one.
• Keep the attorney's money completely separate from the grantor's.
• Write down the reason for any unusual transfer and keep receipts.
• Get legal advice before making a gift to yourself or a relative.

Where a court has appointed a representative under the Supported Decision-Making and Representation Act, that person must not act for their own benefit and must keep the records needed to give a complete account of their financial actions.

Paying yourself

An attorney is not paid unless the document allows it, but may be reimbursed reasonable expenses. So you cannot simply decide on a fee for your time. Reasonable out-of-pocket costs, such as travel for the grantor's affairs, are treated differently from payment for your work.

Remedies if money is misused

An attorney, the Public Trustee or an interested person may apply to court to give directions, terminate the authority or replace the attorney. If you are worried about a relative's attorney, this is the main route to ask a lawyer about.

Other steps may be available. A representation order from the Court of King's Bench can appoint a representative for financial or personal care matters, and if an enduring power of attorney conflicts with a representation order, the order prevails. The court may also require security from a representative.

Time limits can matter. The basic limitation period is the earlier of two years from discovery and fifteen years from the act or omission. How that applies to a particular claim is something a lawyer can confirm, so do not wait.

What to do next

If you are the attorney, protect yourself by keeping clear records and asking before you act in any grey area. If you are the worried relative, gather facts before confronting anyone.

• Get a copy of the power of attorney and read what it permits.
• Collect bank statements and records of large or unusual transfers.
• Note when you first discovered the concern, because time limits may run from then.
• Check whether the grantor still has capacity, since capacity is presumed unless determined otherwise.
• If the grantor has died, remember the attorney's authority ended at death and the executor or administrator deals with the estate.
• See a lawyer about directions, replacing the attorney or other remedies.

Frequently asked questions