There is a legal duty for attorneys to account for the money they spend on behalf of the person who granted them the power of attorney. They do this by "passing their accounts". They give notice to all those people who may be interested in the affairs of the grantor and provide a written accounting to the local court.

The written accounting must follow a specific format which is very similar to what executors and trustees are required to complete in the estate of a deceased person.

If an attorney does not volunteer to prepare the accounts, this can be compelled by application to the court. Anyone who has an interest in the affairs of the grantor may bring this application. The grantor and close family members certainly qualify, although others may also be interested.

The complexity and cost of passing accounts varies with the circumstances. Not only are there court costs, which are often trivial, but there are the professional fees of lawyers and accountants who often become involved in the process.

The attorney prepares a set of accounts that is delivered to those interested people, as determined by the court. Any of those interested parties may object to the actions taken by the attorney, whether or not the actions are disclosed in the accounting. This can then lead to contested litigation and can become very expensive.

A formal passing of accounts may be undertaken by institutional trustees, such as banks, as a matter of course. In such a case, there is rarely an active dispute. The passing occurs only to assure the court and the interested parties that nothing has occurred that is improper. It also stamps approval of the attorney's compensation.

One way in which attorneys, grantors and interested parties may choose to proceed is by specifying in the power of attorney document when and how often an attorney must pass the accounts. This may be done annually or at other intervals depending on what the grantor requires. The purpose is to keep all parties informed.

Christine Arcari

The Estate Law Group at McBride Bond Christian LLP

This is not legal advice. Please consult a lawyer before acting on any of the above comments.

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