When an acting attorney for property isn’t the right person for the job

Donna felt her Mom’s power of attorney was doing such a terrible job that her Mom’s health was at risk. But that’s the middle of the story. Let’s start at the beginning.

When the time comes to consider estate planning options, there are a variety of different legal mechanisms that you can use to protect your personal and financial interests. One of the most effective ways of ensuring that your wishes are respected if you become infirm or incapable of making decisions is to grant a power of attorney for property or personal care to someone you trust. The only problem is that the future is uncertain and family dynamics change. The person named as your attorney today might not be the best person for the job when it really matters. If the person appointed as your parent’s power of attorney drops the ball, are you stuck with that power of attorney or do you have options?

Ontario’s Substitute Decisions Act (“SDA”) governs the appointment and removal of an attorney of property and personal care.¹ A court can terminate a power of attorney for property or personal care and appoint a replacement under sections 12(1)(c), 22, 53(1)(b) and 55 of the SDA.

The practical application of these provisions is evident in Corewyn v. McCulloch.² This case involves Ena and Bill, a married couple who each have children from prior marriages. In 1999, Ena granted Bill a power of attorney for property and personal care. Eight years later, Ena was diagnosed with Alzheimer’s dementia. While Bill was Ena’s power of attorney, he did not participate in healthcare decisions with respect to Ena. It was Donna, Ena’s daughter from her first marriage, who managed Ena’s personal care and property. Over time, the relationship between Bill and Donna broke down. Frustrated by her lack of access to Ena’s medical information, Donna brought an application to be appointed as Ena’s power of attorney for property and personal care.³

Generally, courts will pay considerable deference to the choice of who is to be the attorney for property or personal care if there is a written power of attorney executed when an incapable person was of sound mind. ⁴ Often, to be removed, there must be evidence of misconduct or neglect to terminate a written power of attorney. In this case, there was no evidence that Bill mistreated Ena. Justice Sweeney appointed Donna as Ena’s  attorney all the same. Why? Because the overriding factor was Ena’s best interests.

While Bill technically held the power of attorney for Ena, there was ample evidence that Donna was Ena’s de facto attorney for years. It was Donna who advocated for Ena’s care, visited her regularly and made medical decisions on behalf of Ena. Justice Sweeney noted that Bill had effectively delegated his responsibilities as Ena’s attorney to Donna. When examining the best interests of an incapable person, a court will take into consideration the person’s needs at the time of the application.⁵ In cases where there is no misconduct, a court can terminate a power of attorney if the original appointment no longer serves the person’s best interests.

What do we learn from this case? If there is a genuine concern that an attorney for property or personal care is not acting in an incapable person’s best interests, family members should consult a qualified lawyer for advice.