April 3, 2014

“If the drawing of the clock was akin to Salvador Dali’s paintings, it would not bode well.” Colourful words from Justice Whitten who relied on the court’s parens patriae jurisdiction to remove an attorney for property. The drawing of an ordinary clock is often administered to determine “intellectual acuity”.  Salvador Dali’s iconic image of a melting clock is not only a graphic representation of the surreal, but an insight into the aging mind.

In 1994, Mary McMaster granted a general power of attorney to her two sons, Graeme and Malcolm. She was a wealthy woman and in good health for many years. Malcolm was the de facto manager of Mary’s assets who engaged in various investments schemes to the ultimate detriment of his mother.

Graeme only became aware that he was a joint attorney for property with his brother in 2012.  When confronted by his brother, Malcolm agreed to pass his accounts.  However, Graeme’s court application went further: he sought Malcolm’s removal as attorney for property for breach of his duty to their mother.  Interestingly, in deciding whether to remove Malcolm, the court considered whether a formal finding of mental incapability was even required as a condition precedent to Malcolm’s removal.  The short answer – no!

The court noted that the Substitute Decisions Act (“SDA”) was designed to protect some of the most vulnerable people in society. The act has been given purposive interpretation to protect those at risk. An attorney for property is a fiduciary, held to a higher standard, who must perform his/her duties diligently, with honesty and integrity and in good faith for the incapable person’s benefit. Under section 39 of the SDA, the court has the discretion to give directions on any questions in arising connection with a power of attorney.

According to the court, fiscal incapacity can be an aspect of incapacity, but can also exist without a full blown medical or legal diagnosis of incapacity.  Fiscal incapacity must be objectively scrutinized. In other words, where the medical record before the court is lacking or the court is otherwise loathe to declare a person incapable, the court can nevertheless weigh in on issues where fiscal incapacity is clear without declaring the person incapable.

The court then went on to consider the common law doctrine of parens patriae. The court noted that the exercise of parens patriae is part of the inherent power of the superior court.  It was the sovereign who was first vested with the care of the mentally incompetent (not just children) – the “need to act for the protection of those who cannot care for themselves”.  The courts have frequently stated that its parens patriae powers are to be exercised in the “best interest” of the protected person for his/her “benefit” or “welfare”.”

The court did not see a need to order an assessment to determine if Mary was incapable generally.  Rather, the medical evidence presented clearly painted a picture of an elderly/vulnerable woman, who was fiscally incapable.  The court relied on its parens patriae jurisdiction to critically assess the stewardship of Malcolm pursuant to section 39 of the SDA (the court may give directions on any question arising in connection with a power of attorney).

Malcolm was judged harshly for his management of his mother’s assets.  Simply put, “Malcolm’s stewardship of his mother’s assets has been a disaster”.  The court therefore removed Malcolm as Mary’s attorney for property.  Graeme was declared to be the sole continuing attorney for property of Mary.  Click here to link to Justice Whitten’s February 7, 2013 decision.

Happy Litigating.