April 6, 2009

While fully capable, a person has the right to grant powers of attorney to a family member or close personal friend.  Once a person becomes incapable of managing his/her property, or making personal care decisions, the appointed attorney(s) can act in his/her place.  Attorneys for property or personal care are governed by the Substitute Decisions Act[1] (“SDA”).

Attorneys for property and personal care have wide ranging powers and are required to act in the best interests of the incapable.[2]  Attorneys are considered to be in a position of trust and are therefore regarded by the court as fiduciaries and generally held to a higher standard.

Removing an attorney for property is notoriously difficult.  In general, the courts are loath to interfere with a person’s choice for attorney(s), which was made when the person was fully capable.  Moreover, the SDA is designed not only to protect the incapable, but also to, in large measure, jealously guard a person’s right to choose who he/she wants to look after him/her and his/her property.

However, in certain situations, a family member, or a close friend, may feel compelled to challenge the validity of powers of attorney and may apply to the court to be appointed as guardian.[3]  An attorney for property and/or personal care can be removed by the court for dereliction of duty, including breach of fiduciary duty.  A party can also apply to the court for an order mandating the attorney to take certain actions such as fostering family relationships or consulting with supportive family members.[4]

In this paper, I will consider the legal requirements and the test to be met to remove an attorney for property.  A recent case reported in the Ontario Reports[5] is well worth considering in this regard, as it presents an interesting fact pattern and capably canvasses the applicable law.[6]  I will also consider whether it may be more appropriate to apply to the court for directions rather than seeking the far more draconian and difficult relief of removing an attorney for property.

What I will not consider in this paper is the more benign situation where an applicant applies to the court to be appointed guardian of property as no power of attorney has been granted (in other words, a straightforward court application to be appointed guardian of property).  Considering the “why, when and how” in removing a personal care attorney will also have to wait for another day and another forum.

[1] Substitute Decisions Act, S.O. 1992, c. 30, as amended.
[2] SDA sections 31 and 66.
[3] SDA sections 22 and 55.
[4] SDA sections 39 and 68.
[5] Re Schaefers Estate (2008), 93 O.R. (3d) 447 (S.C.J.).
[6] In the interest of full disclosure, I was counsel for the applicants.


Read the full paper here: Removing an Attorney for Property by Justin de Vries