All About Estates

Removing an Joint Attorney for Property: A High Evidentiary Threshold

Mere disagreement among joint attorneys is not enough to have one attorney removed from their role. A court will defer to the choice of attorney(s) made by the guarantor before they became incapable.  A party requires strong and compelling evidence of misconduct or neglect to remove an attorney.

In White v. White, two brothers, Raymond and Mitchell, were jointly and severally appointed by their mother as her attorneys for property.  The mother had not appointed anyone as an attorney for personal care. The brothers disagreed on a number of issues.  Mitchell sought to be appointed his mother’s sole guardian of property and personal care.   Raymond sought to be appointed his mother’s guardian for personal care but seemed willing to continue to work with his brother jointly in both capacities.

Prior to their appointment, the brothers’ father managed their mother’s finances pursuant to a power of attorney.   Upon his death, the two brothers jointly took over as their mother’s attorneys. The brothers were already acquainted with litigation as Raymond passed his accounts with respect to their father’s estate.  The matter involving their father’s estate was settled by signing minutes of settlement that provided, amongst other things, for the brothers to continue to act as attorneys for property for their mother and agreed that the management of her assets were to be consistent with past practices.

Less than a year later, Mitchell commenced the application to remove his brother as a joint attorney. Mitchell’s position was the relationship was ‘entirely unworkable”.  Raymond described their relationship as “functional”.  Mitchell pointed out disagreements about mom’s clothing, diet, and medical care.    The brothers also differed on Emergency Care Plans for their mother.  Mitchell wanted his mother to have access to life-prolonging hospital care, while Raymond wanted only comfortable measures to be taken.

The court found that Mitchell fell short of providing evidence of neglect or misconduct on Raymond’s part.  Evidence indicated that both brothers were acting in good faith on their mother’s behalf.  The court noted that just nine months prior, both brothers agreed to act as attorneys consistent with past practices and that was being done.  Much of Mitchell’s criticism about Raymond’s actions were justified by Raymond acting consistently with the past practice of their father (the previous attorney) or following medical advice provided by his mother’s doctors.

Further, the court ordered the brothers to be jointly appointed as guardians of person for their mother but if one brother felt that was unworkable, the other brother would be solely appointed.   As for the Emergency Care Plans, the court sided with Raymond’s plan as this was the same plan that their father had implemented as their mother’s attorney.

Joint attorneys are likely to have different opinions but the guarantor’s choice to appoint more than one attorney has to be taken into consideration in removal applications.  Often, parents may feel like they have to appoint two or more of their children, so as not to make anyone feel slighted. However, this may be impractical and set the stage for future litigation.

About Diane Vieira
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. She obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She is a member of the executive of the Trusts & Estates Section of the Ontario Bar Association and a member of the Toronto Lawyers Association. dvieira@devrieslitigation.com

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