A grantor may appoint more than one person as attorney under a power of attorney and may specify whether those attorneys are to act jointly or “jointly and severally”. Where attorneys are appointed jointly, they must make decisions together and are collectively responsible for each other’s actions. By contrast, a joint and several appointment permits each attorney to act independently, without the consent of the others.
However, this flexibility often gives rise to a practical problem: what happens when the attorneys disagree?
Fortunately, a power of attorney document can include a clause setting out the grantor’s instructions for resolving such conflict. Where such a provision exists, it provides a clear mechanism for decision-making and can prevent disputes from escalating. However, in the absence of such a clause, the attorneys have no internal process for breaking the impasse.
Ontario’s Substitute Decisions Act, 1992 (“SDA”) provides two principal mechanisms for resolving these disputes:
- apply to the court for directions, or
- seek the removal of the attorney
Under the SDA, an applicant can seek directions from the court on any question arising under a power of attorney. Pursuant to sections 39 and 68 of the SDA, the court may give such directions as it considers to be for the benefit of the incapable person and consistent with the SDA.
Alternatively, one can ask the court to remove the attorney and replace them with an alternative or with a court-appointed guardian. However, removal will only be warranted if the misconduct of the attorney is serious and the evidence of such conduct is compelling. In some cases, even if one of the attorneys fails to act diligently, their actions may not warrant a removal.
Case law: White v. White (2017 ONSC 4550)
This approach is well illustrated in White v. White.[1] The case concerned an elderly woman in long-term care who was in the advanced stages of dementia. Years earlier, she had executed a continuing power of attorney for property naming her husband as attorney, and upon his death, appointing both of her sons jointly and severally.
After the father’s death, the sons became deeply divided over their mother’s care and financial decisions. One son applied to remove the other as attorney and to be appointed as guardian of property and personal care. The other sought appointment as guardian of personal care but did not seek to remove his brother as attorney for property.
Allegations of misconduct included refusal to authorize purchases of clothing, resistance to certain medical testing, disagreements about personal care decisions, disputes over religious observance, and the existence of conflicting emergency care plans provided to the care facility.
Legal Principles
Pursuant to section 32(1) of the SDA, an attorney for property is a fiduciary who is required to act with diligence, honesty and integrity and in good faith for the benefit of the incapable person.
An attorney for property who was appointed by a person who subsequently became incapable should only be removed based on strong and compelling evidence of misconduct or neglect on the part of the attorney. A second issue relates to whether the attorney is acting in the best interests of the incapable person. The analysis of these issues is contextual.[2]
The Court’s Resolution
The court declined to remove either attorney.
The judge found that, by appointing both sons under the power of attorney, the mother had clearly expressed her intention that they both remain involved in managing her affairs. Respecting that intention was central to the court’s decision. Although their relationship was strained, both sons were found to be acting with their mother’s best interests in mind.
The court provided specific directions to resolve the most pressing conflict – particularly the incompatible emergency care plans. The court selected the care plan that aligned with the approach previously taken by the mother’s late husband and accepted the advice of the healthcare professionals at the facility.
The court also stated that questioning medical advice does not, by itself, amount to misconduct and neither party was faulted for having differing views in respect to their mother’s care plan. However, there was no evidence to show that the mother’s care was inadequate, and the court concluded that her needs were being appropriately met.
[1] White v. White, 2017 ONSC 4550
[2] Teffer v. Schaefers, 2008 CanLII 46929 (ON SC), at paras. 24–25
