In the recent decision of The Estate of Joan R. McAteer, deceased, 2025 ONSC 1197, the Court outlined an attorney for property’s fiduciary obligations to account to the beneficiaries of the incapable person’s estate upon their death.

When John Joseph McAteer died, attorneys for property managed the assets of his incapacitated wife, Joan McAteer, until her death.

Following Joan’s death, their son, also called John McAteer, brought an application to compel his mother’s attorneys for property to pass their accounts. In particular, the son sought productions of documents concerning the affairs of corporations in which his mother held interests, and about various transactions that were conducted by the corporations during the tenure of the attorneys for property.

The Court noted that an accounting of attorneyship accounts was not available as of right, and leave was required under s.42(4)6 of the Substitutions Act, 1992, SO 1992, c 30. The Court was also concerned about proportionality and the risk that the accounting would amount to a fishing expedition. However, the overarching principle is that fiduciaries must account. On balance, the Court found that all of the documents sought were relevant and must be provided with the exception of one. The documents sought were part of a proper accounting by legal representatives who control corporations as fiduciaries. That the documents may overlap with productions sought in the applicant’s related oppression remedy proceeding could also result in some efficiencies by reducing costs and producing them in the other application. The Court also noted that any transactions conducted by the attorneys for property affected the mother’s financial interests, and so was relevant to the accounting sought. In terms of the obligation to account, the Court offered the following:

“[20]      Accountability is the price of undertaking a fiduciary position. Attorneys for property must be prepared to account for their activities to show that they acted solely in the best interest of their principal and that they engaged in no self-dealing or conflicts of interest in violation of their fiduciary duties. This may sound onerous; but it is necessary. Moreover, it is not so onerous. In the ordinary course attorneys for property are indemnified for any professional assistance that they require to help them account. They can also seek compensation for the time they spend on their duties in most cases. The law protects them and values their willingness to devote their selfless efforts to protect a vulnerable person. But it also insists on strict performance including transparent accountability.”

The Court did not accept that documents were unavailable to the attorneys because the corporation had been sold, as parties are required to produce everything in their possession, power or control, and so to the extent the corporation has been sold, they may still retain records in their files, on their computers, or with their accountants or other professionals. Former directions of corporations commonly retain copies of financial statements or tax returns to protect themselves from liability or CRA assessment. Moreover, production obligations trump confidentiality, unless trade secrets are involved. The Court therefore required evidence of what due diligence the attorneys for property conducted before accepting they had no documents from the corporation that was sold. In terms of scope of production, the same documents that are routinely produced by estate trustees to account for an estate of a deceased person (including bank statements and transactions details) are producible by a fiduciary who manages a corporation on behalf of an incapable person.

On the issue of productions, the parties were ordered to agree on an order that gave the attorneys for property a maximum of 45 days to collect and produce the relevant documents as ordered.

Take Away

The case serves as a stern reminder that fiduciaries (in any capacity) can be compelled to account for their actions, and so should maintain records accordingly, even after their role comes to an end. Although leave is generally required to compel attorneys for property to account, the disclosure of documents may still be ordered beforehand, so thorough record keeping is key.