On September 1, 2011, numerous amendments to the Power of Attorney Act (the “Act”) came into force. These amendments will, among other things, affect the entitlement of attorneys appointed under an enduring power of attorney (“EPA”) to receive compensation for acting as attorney. This bulletin highlights the new statutory provisions with respect to the compensation of attorneys and the effect that these provisions may have on EPA’s made prior to September 1, 2011.
NEW COMPENSATION PROVISIONS
Under the amended Act, an attorney “must not be compensated for acting . . . unless the EPA expressly authorizes the compensation and sets the amount or rate.” Accordingly, a person who is planning an EPA should consider whether the attorney(s) are to receive compensation and, if they are, the amount or rate of compensation.
EPA’S MADE PRIOR TO SEPTEMBER 1, 2011
The amended Act grandfathers EPA’s made prior to September 1, 2011. However, it is not clear whether attorneys appointed under an EPA made prior to September 1, 2011 may be able to receive compensation absent a specific compensation provision in the EPA. Previously, attorneys could claim reasonable remuneration for providing the services even where there was no clause spelling out in express terms the entitlement to compensation. This is referred to as compensation on a quantum meruit basis. In the face of the statutory prohibition against compensation unless expressly authorized, it is uncertain whether a quantum meruit claim can still be made by attorneys who are acting under an EPA made prior to September 1, 2011. Given this uncertainty, EPA’s made prior to September 1, 2011 should be reviewed and revised to authorize compensation and the amount or rate thereof if it is intended that the attorney(s) are to receive compensation.