In two cases decided in 2010, the Court considered whether it was appropriate for an attorney for property to pay herself for care services provided to an aging parent. In Barberi v. Triassi Estate, Justice Mulligan harshly criticized the actions of a co-attorney for property and care. Her mother’s power of attorney for care and property named her and her two brothers as joint attorneys. Ignoring an agreement she and her brothers had reached to place her mother in a nursing home (which had been made in consultation with a social worker), the daughter instead unilaterally checked her mother out of the nursing home and proceeded to take over her mother’s care on her own. She then took her mother’s pension and WSIB cheques and used them to pay herself for her care services without agreement from her co-attorneys to do so. She reasoned that she should be entitled to compensation equal to the cost of semi-private coverage in the nursing home. The Court strongly disagreed with the attorney’s actions and ruled that her actions constituted a breach of her obligations under the Substitute Decisions Act. The breach of her duties as a fiduciary, the Court held, was a factor to be considered in deciding the appropriate level of compensation. The Court disallowed her entire claim for compensation in view of her actions.
In Re: Kalczynski, two residual beneficiaries objected to the accounts of their sister, who had acted as their mother’s attorney for property and as estate trustee following their mother’s death. The fiduciary was a certified personal service worker, who gave up her job and instead paid herself to care for her mother in her own home. On the contested passing of accounts application, the Court found that “given the conflict of interest that the trustee created by hiring herself, in my view any such payment is subject to close scrutiny”. The judge disallowed most of what had been claimed in compensation for taking care of her mother, who suffered from Alzheimer’s disease and related disabilities. The judge also required her to repay approximately half of the money she had paid herself from her mother’s funds on account of rent and groceries, quipping, “$1000 per month seems steep to me for use of one bedroom plus common areas, and whatever groceries an old lady with Alzheimer might need”.
The theme that emerges from these cases is this: being named as a fiduciary should not be treated as an opportunity to create a job for yourself or your friends. If you want to take care of a declining parent, do it out of love and affection and with the consent and support of your co-attorneys and those entitled to share in the person’s estate. Don’t do it expecting to be paid. If you want or expect to be paid, seek the Court’s direction in advance.