A recent decision of Justice Brown of the estate court in Toronto comments on the increased litigation of the “so called battle of competing powers of attorney” and calls for legislative change. 

“May I pause here and say that I have reviewed much of the material involved in the litigation initiated by Ms. Biegun, as Mr. Baranek’s attorney, and Mr. Coon’s passing of accounts. The so-called “battle of competing powers of attorney” is emerging as a growing area of litigation. This is a most unhealthy development. I suspect that when the Legislature passed the Substitute Decisions Act back in 1992, it intended to put in place a legal framework which would protect the affairs of the vulnerable elderly, not spawn a new breed of litigation which would see the hard-earned money of the vulnerable being exposed to claims for the payment of legal fees incurred by those whom they had appointed to protect their interests. In so commenting I am not passing judgment, one way or the other, on the conduct of Mr. Coon or Ms. Beigun.  I am signalling that the inter-attorney litigation which erupted in this case is symptomatic of a much larger problem which, as Ontario’s population ages, risks turning into a very serious social issue. Indeed, I think the time may have arrived for the Legislature of this province to look into this problem of litigation involving competing powers of attorney, especially involving subsequent powers of attorney made during the latter periods of a person’ life when they are vulnerable to pressure, in order to see whether new protections are required to ensure that the assets of the vulnerable are used for one purpose only – the satisfaction of the needs of the vulnerable elderly while they are alive.”

This is an increased area and difficult area of litigation – raising questions of procedure, capacity, service, the role of the PGT, proper parties and substantive law.  The courts, including Justice Brown, are seeing a lot more of these cases and perhaps recognizing the blunt stick of the Substitute Decisions Act, 1992 is not nearly sharp or effective enough.  Perhaps the legislature will listen and respond. How, is however, for another day.

Lesson Learned: with the increase in “inter-attorney litigation” changes to the governing statute would be welcomed but not expected soon, leaving it to us to be ever so vigilant in managing and advising in this area.

Until next time,

Jasmine Sweatman