This blog has been written by Mohena Singh [Associate] at Fasken LLP

As we near the new year and reflect on another holiday season, many of us may have used this time to spend with family and friends or catch up on some much needed rest and recovery. This time of year also tends to be one filled with gift-giving and showing love to the special people in our lives. Many of us may have rushed this past week to find the perfect gift for our loved ones.

Sometimes knowing a person’s wishes are not as easy as a simple wish list. This is especially true when it comes to the personal care of a person after they have become incapable. A Power of Attorney for Personal Care allows individuals to dictate how they would like to live or have their health care be if they become incapable. Individuals can provide guidance on where they would like to live, how their money should be spent on their health care and what they value most about their lifestyle. The issue ensues when the loved ones of the incapable person disagree on what the person would have wanted if they could have made the decision.

The case of Souter et. al. v Poitras, 2023 ONSC 6983, portrays a family dispute over a mother’s care. Prior to her incapacity, the mother appointed her son as her attorney for personal care and property. After she became incapable, her two daughters brought an application to have their brother removed as her attorney for personal care on the grounds that he failed to fulfil his obligations as attorney under the Substitute Decisions Act, 1992, S.O. 1992, c. 30.

The court found that both the legislation and case law emphasize the importance of respecting an incapable person’s wishes, especially if the power of attorney was validly executed, which in this case it was. In order to disturb the incapable person’s wishes, the daughters would have to show proof, on a balance of probabilities, that their brother misbehaved or did not act appropriately.

The first item that must be considered is whether the attorney made decisions according to the incapable person’s wishes. In this particular case, the son said that he followed his mother’s directions that were conveyed to him orally, but were not provided for in the power of attorney or any other documents. Since the court could not ascertain the mother’s wishes independently, the court had to review the son’s actions within the context of his mother’s best interest. It was concluded that in the absence of evidence of misconduct and neglect by the son, the court had to respect the mother’s decision and leave the son as her attorney for personal care.

Although all of her children loved and cared for their mother, their views on her care differed enough for them to ask the court to determine who would better serve as her attorney. In the end, her written wishes were abided by and held at the highest priority, which reiterates the importance of ensuring a person writes down their wishes and validly executes all the necessary documents so that no one can dispute what they truly desire.

Along with gift exchanges, dinners and decorations, the holiday season is also a great opportunity to have discussions about incapacity planning with your loved ones to ensure everyone is on the same page about the values that matter most. Every family has their disagreements and quarrels. I know my family sometimes cannot even agree on what to have for dinner, but I will make sure this holiday season we take some time to have the difficult conversations so we make sure that, as a family, we can take care of each other without any arguments.

Wishing everyone a happy holiday season and a great start to the new year!