All About Estates

Guardian of Personal Care: Step Up or Step Out

Applications to appoint, remove, or replace a guardian or attorney for personal care are well understood to be some of the most emotional and contentious types of disputes. They often bring to the fore pre-existing fractures in family relationships, as sibling is pitted against sibling in a fight to control their parent’s care decisions. While the wishes of the parent are given preference, it may be difficult to determine what the parent wants where she is no longer capable of making care decisions for herself. In those circumstances, the court will look at the past actions of the competing applicants – who has consistently stepped up to care for their parent?

This was the situation in Aiello v Bleta, 2020 ONSC 62. In 2008, immediately following the death of her husband, Mrs. Bleta moved in with her eldest daughter, Bertha. In 2009, Mrs. Bleta signed a continuing power of attorney for personal care appointed her son, LeRoy, as her attorney for care and Bertha as alternate.

Mrs. Bleta was declared incapable of managing her property in 2010. In 2012, LeRoy and Bertha were appointed as co-guardians of property. At the same time, the court confirmed that Mrs. Bleta’s power of attorney for care was valid, meaning LeRoy could act as Mrs. Bleta’s attorney for care.

Unfortunately, the relationship between LeRoy and Bertha was best illustrated by the series of lawsuits between them. Unable to work together, the court terminated their appointment as co-guardians of property in 2018 and named a neutral third party in their place. Around this time, Bertha brought an application to remove LeRoy as Mrs. Bleta’s attorney for personal care.

Pursuant to s. 3 of the Substitute Decisions Act, counsel was appointed for Mrs. Bleta for the limited purpose of representing her on personal care issues. Section 3 counsel met with Mrs. Bleta regularly, but was unable to determine Mrs. Bleta’s wishes regarding her attorney for personal care. However, Mrs. Bleta expressed clear and consistent wishes to continue living with Bertha and to maintain the services of her paid companion, Majlinda.

The court then reviewed some of the behaviour of Bertha and LeRoy over the last decade:

  • Since 2008, Bertha has been providing Mrs. Bleta with comprehensive caregiving, including showering, grooming, dressing, laundry, meal preparation, booking and attending medical appointments, arranging visits with family and friends, taking her out to restaurants and vacations, and buying her clothes.
  • While acting as co-guardians of property, LeRoy refused to reimburse Bertha for more than half the expenses she incurred while caring for Mrs. Bleta, including Majlinda’s services. This led to Majlinda resigning due to lack of certainty over being paid.
  • LeRoy failed to attend Mrs. Bleta’s dental surgery despite being told by Bertha that he needed to sign the consent forms as Mrs. Bleta’s attorney for personal care.

In reaching its decision, the court looked at s. 57(3) of the Substitute Decisions Act, which set out the criteria for the appointment of a guardian of the person:

  • Whether the proposed guardian is the attorney under a power of attorney document;
  • The incapable person’s current wishes, if known; and
  • The closeness of the relationship between the applicant and the incapable person.

The court found that, while acting as attorney for personal care, LeRoy had failed in his duties as set out in s. 66 of the Substitute Decisions Act. In particular, LeRoy failed to act in good faith when he refused to approve the reimbursement to Bertha of Mrs. Bleta’s expenses. This resulted in the loss of Mrs. Bleta’s favoured companion, Majlinda. LeRoy was also derelict in his duties when he failed to sign the consent forms necessary for Mrs. Bleta’s dental surgery. The evidence also showed that LeRoy failed to consult with supportive family members as he was required to do.

In contrast, Bertha had been acting as Mrs. Bleta’s de facto attorney for personal care for the last 11 years, making the day-to-day personal care decisions for Mrs. Bleta. There was also evidence of Bertha’s attempts to involve LeRoy in Mrs. Bleta’s life, which were often ignored.

Accordingly, the court held that LeRoy should be removed as attorney for personal care and that Bertha should begin acting as the named alternate. In reaching this decision, the court noted that it was not substituting its own views for Mrs. Bleta’s – Mrs. Bleta had chosen Bertha as her alternate attorney for care in the event that LeRoy was unable to act.

Nevertheless, Bertha’s victory was not complete. The court held that this was the type of dispute that a family ought to be able to sort out on their own. Accordingly, LeRoy and Bertha were ordered to bear their own costs; neither was allowed to recover their legal fees from Mrs. Bleta’s assets.

About Gillian Fournie
Gillian is a lawyer with de VRIES LITIGATION LLP. Her practice focuses on the area of trusts and estates litigation. gfournie@devrieslitigation.com

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