All About Estates

Attorney Compensation – Can you count on it?

“An application to pass accounts is more than a rubber stamping of an attorney for property’s accounts”, reminds Justice Graeme Mew in Re Andriesky Estate, 2022 ONSC 242.

In most circumstances, an attorney for property is entitled to the percentage formula in the Regulation.

Ontario Regulation 26/95 made under the Substitute Decisions Act provides:

1. For the purposes of subsection 40(1) of the Act, a guardian of property or an attorney under a continuing power of attorney shall be entitled, subject to an increase under subsection 40(3) of the Act or an adjustment pursuant to a passing of the guardian’s or attorney’s accounts under section 42 of the Act, to compensation of,

a) 3 percent on capital and income receipts
b) 3 percent on capital and income disbursements; and
c) Three-fifths of 1 percent on the annual average value of the assets as a care and
management fee.

However, section 42(1) of the Substitute Decisions Act provides that the court may pass all or a specified part of an attorney’s accounts.  What does this mean for an attorney for property or personal care who has put time and effort into managing the property and care of a grantor?  It means that they are not guaranteed to receive the compensation they seek.  The court has the discretion to adjust the compensation claimed to an amount that it deems is fair and reasonable, notwithstanding the percentage formula in the Regulation.

In the above-mentioned case, Helen Andreisky appointed the Applicants as her attorneys pursuant to a Continuing Power of Attorney and a Power of Attorney for Personal Care.  The Applicants acted as the grantor’s attorneys for property and personal care for four months prior to her passing.  The compensation they claimed was within the guidelines for allowable compensation provided for by the Regulation.  One of her attorneys was a retired nurse who recorded her hours assisting the grantor at the hourly rate payable to unionized nurses at her level in Ontario.

The judge notes that (1) the Power of Attorney for Personal Care did not contain a provision for compensation, and (2) that it was effective only if the grantor was under legal incapacity.  There was no evidence submitted to the court that the grantor was legally incapable during the period in which the attorneys acted.

The application was adjourned to a future date.  This decision is a reminder that the court has an overarching responsibility to supervise attorney compensation to ensure that it is fair and reasonable in all of the circumstances, and compensation is in no way guaranteed.

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