September 30, 2013

The recent decision in Lehtonen v. Neill serves as a useful reminder of the sometimes overlooked subsection 22(3) of the Substitute Decisions Act.   This provision prohibits the court from appointing a guardian where the court is satisfied that decision making for the incapable person can be met by a less intrusive means.  It says:

The Court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

a.  does not require the court to find the person to be incapable of managing property; and

b. is less restrictive of the person’s decision-making rights than the appointment of a guardian.

In Lehtonen v. Neill, the alleged incapable mother had three children.  The dispute centred around the management of her property and personal care.  The mother had appointed her daughter-in-law as her attorney for property.  The other two children became suspicious of the daughter-in-law and brought a guardianship application in which they sought the removal of the daughter-in-law and their own appointment as guardians of both property and personal care.

A capacity assessment completed during the course of the proceeding confirmed that the mother was capable of personal care, capable of granting a power of attorney for property, but incapable of managing property. The mother expressed to the assessor that she was happy with the management of her finances by her daughter-in-law and wished for the litigation to end.

Accordingly, the Court dismissed the guardianship application and refused to make a declaration that the mother was incapable of managing her property.  In keeping with section 22(3) of the SDA, the court refused to appoint a guardian because to do so was unnecessary in light of the fact that there was an existing POA.

The case is a useful reminder that in a dispute involving so-called “duelling powers of attorney” (which will typically proceed by way of two competing guardianship applications), the principal relief sought should be a declaration that an power of attorney is valid; guardianship should only be sought in the alternative.  Guardianship should only be ordered when there is no valid power of attorney.

Thanks fore reading.