By: Charles Wagner, & Adin Wagner1
Is an Attorney for Property2 obliged to share the financial records of the incapable person with his/her family? Are members of the family entitled to see the medical records of the incapable person or is the Attorney for Personal Care entitled to deny them access?
One of the duties of an Attorney for Property under s. 32(5) of the Substitute Decisions Act (“SDA”) is to regularly consult with “supportive family members and friends” of the incapable person (the “Duty to Consult”). However, the section is silent on the scope of that obligation. Certainly, one would consider the duty to consult to be an aspect of the Attorney’s over-riding fiduciary duty to act in the best interests of the incapable person. The question, therefore, is what does the duty to “consult” entail?
An Attorney for Property might argue that the duty to consult only necessitates providing an executive summary of the financial information to concerned family and friends. The Attorney might further argue that providing the actual records is an unnecessary infringement on the privacy of the incapable person. On the other hand, the concerned family could argue that to provide meaningful input they need to see the financial records rather than rely on someone else’s executive summary and conclusions. For example, when comparing the affordability of different care options the family might want to see what income producing assets are available. In determining which assets are to be used to pay for the needs of the incapable person, the family might want to see particulars of the assets to determine whether there is sufficient liquidity or whether assets should be sold. If the sale of public securities is being contemplated, the family might want to see the present makeup of the public securities and consider the risk tolerance of the incapable person before offering their opinion. Ultimately, a perfunctory consultation without any data does little to serve the best interests of the incapable person. So let’s see what the relevant statutes, regulations and case law have to say about the scope of disclosure.
Under the Substitute Decisions Act (“SDA”)3, there is a regulation that deals with the issue of disclosure (the “Regulation”).4 Subsection 4(d) of the Regulation provides that an Attorney for Property shall not disclose any information contained in the accounts and records except as is consistent with or related to his or her duties as attorney (emphasis added).5 One of the propositions addressed in this blog is whether disclosure of financial records to concerned family members is necessary for the Attorney for Property to meet his/her statutory duty to consult under s. 32(5) of the SDA.
To better understand the phrase used by the Regulation, “…consistent with or related to his or her duties as attorney..”, it will be helpful to discuss those duties.
The Prime Duty of an Attorney – Thesis Statement of the SDA
The SDA provides that an Attorney for Property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.6
Acting “for the incapable person’s benefit” is the key. It’s not about being fair to the other members of the family. The mission statement of the SDA is that choices made should only consider what is in the best interests of the incapable person.”7 Thus, the duty to consult serves as a mechanism to fulfill the duties of the fiduciary toward the incapable person, not to serve the interests or curiosity of family members.
Let’s see how the court dealt with the entitlement of concerned family members to financial disclosure in Sitko.
Section 32(5) and Sitko
The Sitko case dealt with the quantum of the compensation claimed by Albert for his work as his father’s Attorney for Property for 4 years. Relations between family members were acrimonious, and some took issue with Albert’s failure to keep proper records and share financial information with the family.8 In particular, there was so much tension between Albert and his sister Paula that he refused to disclose what he was doing with their father’s money. In paragraph 32 of Sitko, the judge commented:
“………As Albert had a statutory duty pursuant to s. 32(5) of the Act to consult supportive family members, Paula clearly fell into that definition. His express desire to keep John Paul’s monies from her or from her scrutiny was a breach of an aspect of the statutory duty imposed on Albert”
In our view, it seems clear that the Court felt that the Attorney ought to have made financial disclosure flowing from his duty to consult the family.9 It appears, however, that not everyone agrees with our understanding of the judge’s comments or that this is a general rule of application.
In Sitko v. Gauthier Estate the court held it was a breach of the attorney’s duties to have not informed his sister (the attorney for care) that he transferred money from his incapable father’s account into his own account. While this decision seems to suggest a high level of financial reporting to family members, it is more likely that the decision reflects the court’s reluctance to allow an attorney to hide his malfeasance from other family members under the guise of protecting the incapable person’s privacy.
Ms. Vieria’s conclusion may or may not be correct. However, even if she is right about the Court’s appreciation of the circumstances of the Sitko case, that does not close the door to more extensive obligations inherent in the duty to consult. Nonetheless, Ms. Vieria is not alone in her belief about the limitations of the duty to consult with family members. There is case law and secondary authority that does support the proposition that the duty to consult concerned family does not include a duty to disclose. In its Discussion Paper – Powers of Attorney Act (2014), the Law Reform Commission of Nova Scotia considered the case of D.B. v. J.M.J., and stated:
…. the court found that the failure of the attorney to account to family members was not cause for the attorney’s removal. Neither the EPA nor the Act required that the attorney was to account to or consult with the donor’s family members. The applicants were not alleging that there was any inappropriate conduct on behalf of the attorney other than the failure of the attorney to consult with the family or keep the family informed of accounts.(emphasis added)
Other Relevant Case Law
There are several other cases where courts dealt with disclosure without directly addressing whether there is an obligation to disclose rooted in the duty to consult. If examined in isolation, each judgement might be explained away on the facts specific to each individual case. However, when taken together, these cases arguably exhibit a pattern of courts taking the existence of some form of disclosure obligation towards family as a given.
In Groh v. Steele,12 the applicant sought to compel his sister to commence an application to pass her accounts as an attorney for property for their mother. He relied on s. 42(1), (4) which provides a list of parties that may apply to the court to have an attorney pass his accounts. As part of that list, the SDA includes “any other person, with leave of the court”. The applicant argued that he ought to qualify as “any other person” because the sister had an obligation to consult concerned family and friends which included the duty to share financial information. Interestingly, the judge did not reject the applicant’s argument about the disclosure owed to family members. Instead, the judge dismissed the request because the applicant had demonstrated that he was not, in fact, a very supportive or concerned family member. In other words, the applicant was disentitled to be consulted because of his behaviour, not his status as a family member. By focusing only on the fact that the applicant did not qualify as a concerned family member, the judge left open the door for the argument that if he did so qualify he would have been entitled to financial disclosure.
Another helpful case is Carey v. Carey.13 In this case, the issue was whether the son’s conduct as the mother’s Attorney warranted his removal. This decision was the culmination of a long and drawn out litigation between other members of the family and the Attorney. In describing the misconduct of the son as Attorney, the judge wrote that the son failed to “obtain the records [relating to the utilization of the mother’s mortgage funds] and disclose the information sought”. The son had also “failed to obey a number of court orders requiring disclosure.”
While Carey does not explicitly tie an Attorneys’ duty to consult family with a duty to disclose, the Court does refer to the statutory duty to consult as a “relevant provision” prior to addressing the son’s misconduct as Attorney. Granted, Carey does not prove that the statutory duty to consult incorporates a duty to disclose, but it is consistent with the proposition.
Relevance of Sitko, Groh & Carey to disclosure obligations of the Attorney for Personal Care
Section 66 of the SDA sets out the duties of an Attorney for Personal Care. In parallel to s. 32 (5), s. 66(7) requires that the attorney “…. consult from time to time with supportive family members and friends of the incapable person who are in regular personal contact with the incapable person.”
Section 3 of the Regulation requires that an Attorney for Personal Care retain records including a copy of medical reports or other documents, if any, relating to each decision. Subsection 5(3) of this Regulation provides a list of people entitled to disclosure of the records kept by the Attorney for Personal Care. Family members are not on that list. Notably, unlike the Regulatory provision dealing with the disclosure requirements of an Attorney for Property, the Regulatory provisions for an Attorney for Personal Care are missing the key phrase outlined above: “ as is consistent with or related to his or her duties as attorney or guardian”. Query, whether the absence of this phrase precludes the argument from a concerned family member or friend that they are entitled to production of the incapable person’s medical records so that they may provide meaningful input into their care.
Our office litigates many SDA cases. We have successfully negotiated the release of medical records by pointing out that the Regulation obliges the Attorney for Personal Care to keep records of his/her decisions and the basis of those decisions. We have then persuasively argued that disclosure must be made for the Attorney to fulfil his/her statutory duty to consult from time to time with supportive family members and friends. Otherwise – the consultation is meaningless. After all, how can one offer input on the prudence of proposed medical treatment without having knowledge of the medical condition of the incapable person? We are unaware of a case where this issue has been litigated.
Conclusion and Takeaways
SDA litigation views disputes through a singular lens. Disclosure and compelling an Attorney to account is no exception. Judges ask themselves “what is in the best interests of the incapable person?” and then forge a solution based on the facts of the case. Litigants’ perception of fairness to themselves is irrelevant.
For anyone litigating the issue of disclosure, one of the most important things to do is to familiarize oneself with Accounts and Records of Attorneys and Guardians, O. Reg. 100/96. The Regulation gives the Attorney for Personal Care the right to demand disclosure of financial records and the accounts kept by the Attorney for Property. It also requires the Attorney for Personal Care to disclose to the Attorney for Property the records he or she keeps. As for concerned family members, it’s more complicated.
Clearly, a breach of the statutory obligation to consult with supportive family members or friends has resulted, in some instances, in disclosure being ordered.14 But there are other cases where disclosure to the family was not ordered.15 It appears as if there is one test that applied to anyone seeking leave for an accounting under s. 42(4) separate and apart from obligations of an Attorney to consult with concerned family or friends. The test was set out in Ali v. Fruci (2006).16 For the Court to grant leave the applicant must show that:
(1) the person or persons seeking leave have a genuine interest in the grantor’s welfare; and, (2) a court hearing the application under s. 42(1) may order the attorney or guardian to pass his or her accounts.
Ultimately, until Ontario’s Court of Appeal rules definitively on whether the obligation to consult gives rise to disclosure obligations there is room to argue both sides. Arguably, if the courts accept the proposition that an Attorney for Property is obliged to disclose financial information to concerned family then the same rationale could easily apply to the disclosure obligations of an Attorney for Personal Care.
In conclusion, it behooves both litigants and lawyers dealing with this issue of disclosure to remember the words of Justice Brown in paragraph 35 of Abrams v. Abrams:17
Proceedings under the SDA are not designed to enable disputing family members to litigate their mutual hostility in a public court. Guardianship litigation has only one focus – the assessment of the capacity and best interests of the person whose condition is in issue. This court, as the master of its own process and as the body responsible for protecting the interests of the vulnerable identified by the Legislature in the SDA, should not and will not tolerate family factions trying to twist SDA proceedings into arenas in which they can throw darts at each other and squabble over irrelevant side issues.
The bottom line – any litigant who is looking to compel or oppose disclosure must demonstrate that their position is justified on the grounds that the relief sought or opposed is in the best interests of the person whose condition is in issue.
- The authors wish to thank David Wagner for his assistance on this paper. In a case conference last year David used the relevant regulation governing disclosure in SDA cases. Hence the motivation for this blog. ↵
- The authors will use the term attorney, but it equally refers to guardian. See sections 38 and 67 which provide:
• 38 (1) Section 32, except subsections (10) and (11), and sections 33, 33.1, 33.2, 34, 35.1, 36 and 37 also apply, with necessary modifications, to an attorney acting under a continuing power of attorney if the grantor is incapable of managing property or the attorney has reasonable grounds to believe that the grantor is incapable of managing property. 1992, c. 30, s. 38; 1996, c. 2, s. 25 (1) and
• Section 66, except subsections 66 (15) and (16), applies with necessary modifications to an attorney who acts under a power of attorney for personal care. 1996, c. 2, s. 44. ↵
- Substitute Decisions Act, 1992, S.O. 1992, c. 30 ↵
- O. Reg. 100/96: ACCOUNTS AND RECORDS OF ATTORNEYS AND GUARDIANS under Substitute Decisions Act, 1992, S.O. 1992, c. 30. ↵
- The full text of section 4 of the Regulation is An attorney or guardian shall not disclose any information contained in the accounts and records except,
(a) as required by section 5 or permitted by section 6;
(b) as required by a court order;
(c) as required otherwise under the Act or any other Act; or
(d) as is consistent with or related to his or her duties as attorney or guardian. O. Reg. 100/96, s. 4. ↵
- Section 32(1) of the SDA. ↵
- In our view, Justice Brown articulated this best in Abrams v. Abrams, 2010 ONSC 1254 at para. 35.
Proceedings under the SDA are not designed to enable disputing family members to litigate their mutual hostility in a public court. Guardianship litigation has only one focus — the assessment of the capacity and best interests of the person whose condition is in issue. This court, as the master of its own process and as the body responsible for protecting the interests of the vulnerable identified by the Legislature in the SDA, should not and will not tolerate family factions trying to twist SDA proceedings into arenas in which they can throw darts at each other and squabble over irrelevant side issues….my assessment that this proceeding has gone badly off the rails and that the parties have lost sight of the key issue — the best interests of Ida. ↵
- As the court explained, “Albert was required by Accounts of Records of Attorneys and Guardians, O. Reg. 100/96 (”Account and Records Regulations”), regulations pursuant to the Act, to keep records”. ↵
- It is important to remember that the daughter in this case was also an attorney for personal care – i.e. statutorily empowered to apply for a passing of accounts. The court failing to bring this up in its analysis of the duty to consult demonstrates that the two function differently. Thus, it can be argued based on Sitko that (i) the s. 32(5) duty to consult mandates a level of financial disclosure to “supportive” family and friends:; and (ii) this obligation to disclose exists independent of a court order, unlike a passing of accounts. ↵
- How-to-Avoid-Liability-as-a-Power-of-Attorney-for-Property-and-Personal-Care.pdf ↵
- Diane A. Vieira is a partner at de VRIES LITIGATION LLP see https://devrieslitigation.com/about/diane-vieira/ ↵
- 2017 CarswellOnt 9050, 2017 ONSC 3625, 280 A.C.W.S. (3d) 607, 29 E.T.R. (4th) 121. Also see additional reasons 2017 CarswellOnt 12972 (Ont. S.C.J.) ↵
- 2018 CarswellOnt 12305, 2018 ONSC 4564, 295 A.C.W.S. (3d) 205 ↵
- It has also sometimes resulted in reduction of compensation as well as removal and replacement of the attorney. ↵
- See Lewis v. Lewis 2020 CarswellOnt 896, 2020 ONCA 56, 314 A.C.W.S. (3d) 427, 55 E.T.R. (4th) 161. ↵
- 22 E.T.R. (3d) 187 (Ont. S.C.J.), at para. 3: ↵
- Abrams v. Abrams, 2010 ONSC 1254 (CanLII) ↵