Are fees payable for acting as a power of attorney in Ontario?

The fee scale is currently:

• 3% of capital and income receipts
• 3% of capital and income disbursements
• 0.6% of the annual average value of the assets

These amounts are not guaranteed, however, and they can be decreased or even increased by the court. 

According to the Substitute Decisions Act, compensation may be taken monthly, quarterly or annually. You should contact the current attorney for property to raise this with them as a starting point. 

Even if it has been a long time since you acted, Audrey, there may not be a limitation period to worry about. In terms of citing a precedent for this, Armitage v. The Salvation Army, 2016 ONCA 971 involved an application for compensation in 2013 for acting as an attorney as far back as 1990, 23 years prior to the request. 

Specifically, the judge found that the two-year limitation period under the Limitations Act “does not apply because compensation for an attorney for property through the passing of accounts process does not constitute a ‘claim’ within the meaning of the Limitations Act, 2002.”

An attorney for personal care can make a request for compensation to an attorney for property. There is no fee scale as is the case with an attorney for property. The request should be reasonable given the circumstances. 

It bears mentioning that an attorney for property or personal care is not required to act and can decline or resign. It is an important reason to make sure you speak to someone before naming them in an estate document like a POA or a will. 

Power of attorney fees and taxes in Ontario

Fees payable to an attorney are considered taxable income. If you are not in the business of providing POA services, the income should be reported on a T4 slip and be subject to source withholding taxes.