All About Estates

Power of Attorney Terminated Despite No Misconduct

When a dispute arises inside a blended family over who will make substitute decisions for in incapable person, the court may have to step in. In Corewyn v McCulloch, 2015 ONSC 6039, Justice Sweeny appointed the incapable person’s daughter as her guardian, despite the existence of a valid power of attorney and the absence of any misconduct on the attorney’s part.

Bill and Ena had been married for over thirty years. Both had children from previous marriages, including Ena’s daughter Donna and Bill’s daughter Sara. Ena was diagnosed with Alzheimer Dementia and, after she broke her hip in 2014, was moved to a locked ward in a home for the aged (Bill moved to a different ward in the same facility).

Everyone agreed that Ena was incapable of managing her property and her personal care. Bill took the position that he should make substitute decisions because he had been given a power of attorney for both personal care and property in 1999. However, Bill was not really engaged in his wife’s medical care. Donna took care of both Bill and Ena and she would consult with Bill when making decisions about Ena.

This arrangement started to break down after Donna took Bill to a lawyer he did not know to make her his attorney. Afterwards, Bill consulted with a lawyer, revoked this power of attorney and made Sara his attorney. The situation escalated when Donna’s routine inquiry regarding Bill and Ena’s joint investments were miscommunicated to Bill and Sara as Donna seeking to change the designated beneficiaries. Sara unilaterally reduced the hours of Ena’s personal support worker, further adding gasoline to the fire.

Sara then purported to arrange with Donna that Ena and Bill divide their assets 50/50. A few days later, Bill withdrew $75,000 from one of the couple’s joint accounts leaving only $19,000. Donna took her mother to the bank and withdrew the remainder. Donna then commenced an application to be appointed as Ena’s guardian.

Justice Sweeny cited a case stating that there must be misconduct or neglect in order to terminate a valid power of attorney and appoint a guardian. While his Honour found no evidence of misconduct on the part of Bill, he held that the court must take into consideration the changing nature of a person’s needs and always focus on what is in the best interests of the person at the time the appointment is sought to be made.

Donna had acted as de facto attorney for many years. Justice Sweeny found that she was diligent and would ensure that Ena received the best care and treatment (as she had done so in the past). Bill swore no competing affidavit setting out his assessment of Ena’s needs, or the efforts he has made to ensure that his wife receives the best care and treatment. Bill referred to discussions between Sara and Donna regarding the PSW, but Justice Sweeny found that he should not have delegated this inquiry. Given Ena’s condition, there will be be significantly more personal care decisions to be made and Justice Sweeny had no doubt that Donna would make such decisions in the best interest of Ena. As such, his Honour appointed Donna as Ena’s guardian of the person.

Additionally, Justice Sweeny appointed Donna as Ena’s guardian of property. As the guardian must manage the person’s property in a manner consistent with the decisions concerning the person’s personal care, Sara’s unilateral decision to reduce the PSW’s hours raised an issue as to whether the best interests of Ena were being considered.

It seems that Donna will continue to ensure her mother receives excellent care. However, it is troubling that Ena’s valid power of attorney was terminated despite the court’s holding that there was no misconduct on the part of Bill. Ena could have chosen Donna as her attorney, but she did not. Ultimately, it is disappointing that a breakdown in communication between family members led to the necessity of litigation. Hopefully, the parties will take Justice Sweeny’s advice that they mend their relationships and work together to ensure that all of Ena’s needs are met.

About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email: