January 16, 2023

Attorneys of property must keep detailed records of their management of the grantor of the power of attorney’s (the “grantor”) affairs. The reason for this is so they may pass their accounts when needed. While some attorneys may periodically pass their accounts without prompting, others may not. This can be frustrating for others who care about the grantor’s wellbeing, such as siblings or other family members who have not been tasked with acting as attorney. This is because a passing of accounts also acts as an opportunity for those other parties to review the decisions of the attorney, find out exactly how the property of the grantor is being spent, and formally raise objections to the attorney’s actions with which they disagree.

When an attorney refuses on account, especially where there is suspected mismanagement, one possible solution is to bring an application seeking to compel the attorney to pass their accounts. Section 42 of the Substitute Decisions Act, 1992, sets out a list of people who may bring such an application:

    1. The grantor’s or incapable person’s guardian of the person or attorney for personal care.
    2. A dependant of the grantor or incapable person.
    3. The Public Guardian and Trustee.
    4. The Children’s Lawyer.
    5. A judgment creditor of the grantor or incapable person.
    6. Any other person, with leave of the court.  1992, c. 30, s. 42 (4); 1994, c. 27, s. 43 (2).

If the person seeking an accounting is not one of the people listed in points 1-5, the first hurdle to overcome is seeking leave from the court to even bring an application in the first place. It is commonly understood that the court will grant leave to a person if they are convinced that the person seeking leave has a genuine interest in the welfare of the of the incapable person.[1]

Once standing has been granted, the party seeking to compel the attorney to account needs to convince the court that it is warranted. Luckily, the 2020 Ontario Court of Appeal case Lewis v. Lewis provides guidance that the two factors the court considers in making this decision are the extent of the attorney’s involvement in the financial affairs of the grantor, and whether the person seeking the accounting has raised a significant enough concern in respect of the management of the grantor’s affairs to warrant an accounting.

While this may seem like a high hurdle to clear to seek what is essentially a formalized audit, parties who are interested in an attorney’s management of a grantor’s property should keep in mind that having an attorney formally pass their accounts is usually a last effort. Often, many answers can be found through an informal accounting, and is less onerous on all parties involved.

[1] Ali v. Fruci (2006), 22 E.T.R. (3d) 187 (Ont. S.C.), at para. 3: