In Ventura v Ventura, 2022 ONSC 6351 (“Ventura”), the Court dealt with a number of issues relating to the duties and obligations of attorneys for property. In Ventura, “A”, “L”, and “E” were appointed as joint attorneys for property and personal care of their mother, “M”. In 2012, M was diagnosed with dementia. Around the same time, A sold his home and moved himself and his family into M’s home. A began acting as M’s primary caregiver and took charge over M’s finances. L and E also assisted with M’s care on weekends. In 2017, after A went on an extended trip to Portugal, L and E assumed primary care of M until she died in 2018. A, L, and E were the one-third beneficiaries and joint estate trustees of M’s estate.

Following M’s death, L and E commenced an application against A to recover funds which A had allegedly misappropriated while he was living with M between 2012 and 2017. Before A and his family moved in, M’s finances were more than sufficient to meet her monthly expenses. However, after A and his family moved in, M’s finances were no longer enough. For example, M’s property taxes went into arrears. The Court found that A had been using M’s finances not only to pay for M’s living costs, but also to pay for the living costs of A and his family. Moreover, when A went to Portugal in 2017, he continued withdrawing funds from M’s accounts.

During the hearing of the application, the Court addressed a number of problems with A’s former attorneyship, including the following:

First, the Court found that A had breached his fiduciary duties by failing to use M’s money solely for her benefit. As attorney for property, A had the onus of demonstrating that any funds belonging to M were used exclusively for her benefit. This obligation was heightened because M was incapable of managing her own financial affairs. A failed to provide a sufficient accounting of his use of M’s money. Moreover, A allowed M’s property taxes to go into arrears and made withdrawals from M’s accounts even when he was overseas. Together, this led to the inference “of unapologetic appropriation by [A] of [M’s] money, for his own benefit.” Accordingly, A was required to reimburse the Estate for his unexplained use of M’s money.

Second, the Court found that A had retained, destroyed, or otherwise converted chattels belonging to M (e.g., M’s jewelry, furniture, her jukebox, and other nostalgic items). Even though the evidence was insufficient to make detailed findings on this issue, the Court held that L and E were entitled to $30,000 (2/3 of which was to be paid by A) for the chattels. This was largely because A had failed to inventory and account for the chattels remaining in the home after M’s death and had frustrated L’s and E’s attempts to conduct their own inspection of M’s home.

Third, the Court dismissed A’s claim for compensation for services provided as attorney for personal care. The Substitute Decisions Act provides for compensation to attorneys for property but does not speak to personal care compensation. Nevertheless, an attorney for personal care is entitled to compensation, so long as they provide an “adequate record” to justify their claim. In this case, A failed to provide sufficient evidence to justify any claim for compensation. Generally, the extent to which A had cared for M between 2012 and 2017 was unclear. Moreover, A and his family had benefitted from the arrangement, as they lived in M’s house for free during this period of time.

Finally, the Court had no hesitation in removing A as estate trustee of M’s estate. As discussed, A had breached his fiduciary duties to M in his capacity as attorney for property. Moreover, by failing to properly account for his use of M’s funds, M breached his fiduciary duties as estate trustee. The Court was also concerned that A would not be able to reach consensus with L and E on estate administration matters.

Ventura serves as a useful reminder of what attorneys for property should (or should not) do once they assume their responsibilities. Among other things, an attorney for property should ensure that they use the donor’s (i.e., the person who granted the power of attorney) assets solely for the donor’s benefit, especially where the donor is incapable. Further, attorneys for property should keep adequate records so they can explain and justify their use and handling of the donor’s funds.