October 17, 2022

Anybody with a sibling can tell you. Nobody gets under your skin quite like a brother or a sister can. When it comes to care in their old age, many parents will name multiple children as their attorneys for property or personal care. The sentiment is understandable. Parents may not want certain children to feel left out or think their children will be able to work things out amongst themselves in the event of a disagreement. Unfortunately, this can sometimes lead to bitter fights about what’s best for mom, or build resentment towards the attorney who ‘isn’t pulling their weight’.

When attorneys cannot get along, one will sometimes seek to remove the other attorney through a court application. Anybody thinking of doing so should keep in mind that there is a high bar to meet before the court will consider removing an attorney.

In seeking to remove an attorney for property or personal care, the wishes expressed by a person in anticipation of becoming incapable of managing their property or personal care are considered to be particularly important, and should be respected unless doing so would clearly not be in the person’s best interests.[1]

The case of White v White, a 2017 fight between two brothers, Mitchell and Raymond, who could not agree on the best was to care for their mother, is an example of how loathe the court is to revoke an attorney for reasons of conflict amongst attorneys. In the words of the applicant, Mitchell, their attempts to work together to provide for their mother’s care were “a struggle at best and a battleground at worst”.[2] The sources of contention between the brothers included everything from whether their mother needed new clothing to how often her blood pressure needed to be tested. Due to these conflicts, Mitchell sought to remove Raymond and be appointed the sole guardian of their mother.

The court did not grant the relief requested. Applying the principles set out in Teffer v Schaefers and McMaster v. McMaster, the court found that Mitchell had not established “strong and compelling evidence of misconduct or neglect” on his brother’s part.[3]  The court noted that while the brothers each have differing views about expenditures and care decisions made on their mother’s behalf, both were acting in good faith.

So what can a parent do to avoid these situations?

For one, when deciding on an attorney, the donor should think realistically about whether the proposed attorneys can actually work together. One thing to bear in mind is that among the duties and obligations of an attorney for property set out under section 31 of the Substitute Decisions Act, 1992 (the “SDA”), and the duties of an attorney for the person are under section 66 of the same Act, there is a duty to consult with friends and family of the incapable person.

If a donor is certain they wish to appoint multiple children as co-attorneys, they may want to think about having a problem solving mechanism built into the power of attorney document. Though a lawyer is not strictly needed to draft a power of attorney document, it may be worth consulting with a lawyer for a power of attorney document that will contain more complicated provisions.

[1] In Hammond (Re), 1999 CarswellNfld 23 at paras 25.

[2] White v White, 2017 ONSC 4550 at para 14.

[3] Teffer v. Schaefers, 2008 CarswellOnt 5447 at paras 24 and 25.

McMaster v. McMaster, 2013 ONSC 1115 at paras 22 and 23.

White v White, 2017 ONSC 4550 at para 23.