A guardian or attorney for personal care has a duty to make decisions in accordance with an incapable person’s wishes or instructions as they were when the person was capable. The guardian or attorney also has an obligation to try and ascertain such wishes and instructions. If it is impossible to ascertain someone’s wishes, the guardian or attorney must make decisions that are in the person’s best interests.[1]

However, even where someone’s wishes are known, there can be confusion leading to conflict. This is all too common where wishes are communicated orally. Wishes can be misremembered, forgotten entirely, or, where wishes are communicated to a small number of people, contested by loved ones who are unaware of these prior wishes.

This was the situation in Souter et al. v Poitras, 2023 ONSC 6983. The incapable person in question, Georgette, had seven children – 4 sons and 3 daughters. While capable, Georgette had appointed one of her sons, Philippe, as her attorney for property and personal care. The Applicants, Georgette’s daughters, sought to remove their brother as attorney for personal care. The grounds for this were accusations that Philippe had failed to fulfill his obligations under the Substitute Decisions Act, 1992, by failing to provide them with information regarding Georgette’s health and disagreement over the long-term care home Philippe had chosen, among others. Of Georgette’s other three children, one was predeceased and two were not parties to the application.

To explain his actions, Philippe submitted that the day Georgette had executed her Power of Attorney documents, she expressed her wishes to him that she did not want her medical and financial information shared with the Applicants, and that she was adamant about not being placed in a specific long-term care home despite it being closer for family members to visit. However, these wishes were never documented by Philippe or Georgette.

The validity of the Power of Attorney documents executed by Georgette were not in dispute. As such, the court could only find that it was Georgette’s wish to appoint Philippe as her Power of Attorney. Due to the lack of corroborating evidence supporting his claim, the court found it is impossible to know what wishes or instructions were expressed to Philippe, if any.

With respect to the long-term care home Georgette was admitted to, due to the lack of evidence of Georgette’s specific wishes, the court was forced to determine whether the decision was made in Georgette’s best interests. Luckily for Philippe, the court ruled in his favour. While Georgette’s long-term care home was not in the most convenient location for her children to visit, it was only 15 minutes further than where Georgette had lived previously.

When it came to the allegation that Philippe failed to provide his sisters with information about their mother’s health, one argument the Applicants tried to put forward was that Philippe had failed his duty to consult with supportive family members and friends in his decision making.[2] Though the court concluded there was not enough evidence to corroborate Philippe’s claims of Georgette’s specific wishes, there was enough evidence to conclude that Georgette was a very private woman. The court found that Philippe was required to consider the values and beliefs he knew his mother held when capable. Thus, the decision not to share Georgette’s medical information ensured that her values and beliefs for privacy with respect to her medical care were prioritized. The court also reminded the parties that if Georgette wishes for everyone to be involved in her affairs, she could have appointed all of the children Powers of Attorney for Personal Care or instructed Philippe to share her personal information.

While this case was ultimately resolved, it took three years to get there. Let this be a cautionary tale – be careful what you wish for!

[1] Substitute Decisions Act, 1992, s. 67

[2] Substitute Decisions Act, 1992, s. 66(7) and 67.