Power of attorney and guardianship disputes are fairly common in the estate litigation world. Oftentimes, siblings proceed to court as a result of allegations of financial abuse or a failure to look after the health and care of an incapable parent, in accordance with what is required of an attorney for property and/or personal care. Families therefore fight over who should be appointed by the court as the incapable person’s guardian of property or personal care (in many cases, the parent can no longer grant a power of attorney due to capacity issues, so the court must decide). In these types of guardianship disputes, the overriding consideration is the best interests of the incapable person.

The governing legislation in such disputes is the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). The SDA is a stand alone and comprehensive legal regime enacted for the benefit of vulnerable and incapable persons. It is the court’s roadmap. Pursuant to the SDA, the court has ample and broad authority to issue directions in the best interests of the incapable person at the heart of a guardianship dispute. In particular, section 68 of the SDA authorizes the court to make an order giving directions. It states: “(1) If an incapable person has… an attorney under a power of attorney for personal care, the court may give directions on any question arising… under the power of attorney… (4) The court may by order give such directions as it considers to be for the benefit of the person and consistent with this Act.” As stated, the overriding purpose of the SDA is the protection of incapable persons. This is further reflected in sections 66 and 67 of the SDA. Together, these provisions mandate that where the incapable person’s wishes or instructions are unknown, the guardian or attorney for personal care shall make the decision in the incapable person’s best interests.[1]

Moreover, in Sly v Curran, Justice Himel explained that an “application for directions is designed to provide an avenue for guidance and direction by the court in how to approach decision-making, not to have the court make the decision for the substitute [decision-maker] except for certain exceptional situations.”

In addition, the court’s authority is bolstered by its parens patriae and inherent equitable jurisdiction to protect the best interests of vulnerable and incapable individuals. When the court is confronted with an ongoing and live guardianship dispute, the court’s active intervention may well be required.

For example, in Walter Burnat v Mary Bosworth, a brother and sister who were co-attorneys were unable to come to a decision concerning the temporary living arrangements of their incapable mother. Both siblings ultimately wanted their mother to move into a retirement residence in Oshawa, but no spots were available. The brother proposed to move the mother into a retirement home in Richmond Hill until a spot in Oshawa became available. For her part, the sister proposed to maintain the status quo by having the mother remain in her Oshawa home. The court found that this was an exceptional case where it was in the incapable person’s best interests for the court to intervene under section 68 of the SDA to resolve the impasse between the siblings.  Accordingly, the court made an interim order directing that the mother move into the Richmond Hill retirement home until a suitable retirement residence in Oshawa became available. Walter Burnat demonstrates that the court can make an order giving directions under section 68 of the SDA to resolve a dispute, where doing so is in the incapable person’s best interests.

In addition, the court has the jurisdiction to do so under its broad parens patriae or its inherent equitable jurisdiction. As set out by the Supreme Court of Canada in E (Mrs) v Eve, provincial superior courts are vested with parens patriae jurisdiction in respect of the care of incapable persons. The scope, limits, or sphere of operation of the parens patriae jurisdiction is indefinable and unlimited. The only constraint upon a court’s discretion to exercise its parens patriae jurisdiction is that it must be exercised in accordance with its underlying principle: “Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised.”[2]

Generally, the court is vested with broad and inherent powers to supervise the management of estates and guardianship disputes and to control its own processes. As set out in Mayer v Rubin, “[t]he court may draw upon its inherent jurisdiction where appropriate to protect parties before the court so that justice can be done in the proceeding.”

It is worthwhile to consider the aforementioned case law and principles when confronted with complex and difficult cases relating to the management of an incapable person’s property and personal care.

[1] SDA, ss. 66 (3), 67.

[2] E (Mrs) v Eve, 1986 CanLII 36 (SCC), [1986] 2 SCR 388 at paras. 40, 44, 77. See also: Wu, Re, 2006 CanLII 16344 (ON CA) at para 10.