In 2009, Hermine Wekerle, mother of financier and Dragon’s Den star, Michael Wekerle, signed an unconditional power of attorney for property giving one of her three daughters, Caron, authority to be her substitute decision-maker. In 2016, acting under the power of attorney for property, Caron agreed to sell a little old chapel on Yonge Street in Thornhill, Ontario, which was purchased by Hermine’s late husband, Anthony Wekerle, in 1994 for $380,000, on Hermine’s behalf, for $1,500,000 to architect and principal of Urbanscape Group, Ali Malek-Zadeh. Ali’s plan was to turn the chapel, a designated heritage building known as the “Old Presbyterian Church”, into the office headquarters for his business. The sale of the chapel sparked a family feud among Hermine’s four children.
The main cause of the conflict was concern from two of her daughters, Caron and Christine, that 87-year old Hermine was not competent to make her own legal decisions as a result of dementia or some other chronic cognitive impairment. Hermine’s capacity has never been formally evaluated.
Hermine was shocked and upset to learn about the sale of the chapel, as it has great sentimental value to her. She claimed she thought the power of attorney only came into effect if and when she became incapacitated and institutionalized. Because she had not, she believed the power of attorney did not apply.
In an effort to try and undo the sale of the chapel, a few weeks after the deal was signed, Hermine executed a new power of attorney for property, appointing all four of her children. Caron and Christine, who believed that their sister, Carolyn, was manipulating their mother for her own personal advantage (to prevent the chapel from being sold so she could continue using it as a yoga studio), asked a judge to appoint them as joint guardians of Hermine’s property, which would allow them to close the deal on the chapel. However, Justice Frederick Myers decided to appoint the Office of the Public Guardian and Trustee as Hermine’s litigation guardian to protect her interests, as her children were taking sides and advancing their personal interests against the others.
The fighting continued among the siblings for over a year until Judge Herman Wilton-Siegel refused to force the sale, as such an order would require evidence that the property is “unique to the extent that its substitute would not be readily available”, and Ali could not prove this beyond his assertion that the chapel is a heritage property. Hermine was satisfied with the result, but her children’s relationship may never be the same.
Powers of attorney for property can be springing upon a certain date or event occurring, or take effect immediately upon execution; continuing upon incapacity, or cease to be effective upon incapacity; and limited to certain assets or powers, or general in scope. It is important to explain the alternatives to your client, that you document their intention and that your client understands the nature and effect of the document they are signing. Where a power of attorney for property is effective upon execution, proper safeguards should be put in place to ensure the power of attorney is not inappropriately acted upon.