Does a Power of Attorney have fiduciary obligations towards the donor for the benefit of others?

British Columbia, Canada


The following excerpt is from Hollander v. Mooney, 2012 BCSC 1972 (CanLII):

Counsel also agree on the relevance of Easingwood v. Easingwood Estate, 2011 BCSC 1154, [2011] B.C.J. No. 1630 in which Dillon J. found that: (a) “when the trust was created ... [the grantor] lacked mental capacity to deal with his property ...” (para 36) (b) “[the attorneys] ... had fiduciary obligations towards ... the donor, but not obligations as a general trustee for the benefit of others” (para 36) (c) “A power of attorney with the generalized power as here include the power to settle on irrevocable inter vivos trust.” (d) “The trust here reflected perfectly the terms of [the donor’s] will” (para.40) (e) “It was not a situation as in Banton where the assets were distributed contrary to the stated wishes of the donor” (para 40) (f) “Nor is this a situation where the attorneys used the power for their own benefit without the knowledge of the donor.” (para 40) (g) “The trust was a valid act of transfer and was properly constituted as an inter vivos trust” (para 42)

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