I previously described what an individual may charge for work performed as an Attorney of another under a Continuing Power of Attorney for Property. I will here describe what an individual may charge for services provided to or for an incapable person under a Power of Attorney for Personal Care. It is not at all as straight forward as the case under a Continuing Power of Attorney for Property.
An individual acting under a Power of Attorney for Personal Care is entitled to compensation, but unlike the situation with Powers of Attorney for Property, the right to do so is not to be found in the Substitute Decisions Act or Regulations made under it, and there is no clear, precise method to be used in calculating it. Rather case law has determined that an Attorney (or Guardian) of Personal Care is entitled (should he or she wish to claim it) to “reasonable” compensation for the personal care services performed. The case law has made it clear that in order for an individual to claim compensation for acting under a Power of Attorney for Personal Care:
1. There must be sufficient evidence about the nature and extent of the services provided.
2. The evidence of the services must be such that based on it a reasonable amount can be fixed for the compensation.
3. The compensation requested must be reasonable.
4. The services rendered must have been either necessary or desirable and again, reasonable.
5. In determining what is “reasonable” both in terms of services provided and compensation claimed, the amount claimed must not only be “reasonable” in terms of the services performed but must also be “reasonable”, i.e., proportionate, having regard to the means of the incapable person.
It is important to note that the individual claiming compensation must be reasonable in that claim. In one reported case, an individual claiming $133,000.00 for services provided to her mother under a Power of Attorney for Personal Care over a just under 3 year period, had that sum reduced to $25,000.00.
So whether seeking compensation under a Continuing Power of Attorney for Property or a Power of Attorney for Personal Care, be careful, seek professional advice, and above all be reasonable.
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