One of the most difficult aspects of aging is the realization that at some point, you may not be able to care for your health or your finances. When this occurs, a person may be granted authority for your health or for your property. These are known as powers of attorney for property, or powers of attorney for personal care. While those appointed to these roles are supposed to have the best interests of the person needing care in mind, there are instances when the parties disagree over what is in the person’s best interests. This was the case in a decision recently issued by the Ontario Superior Court of Justice.
Parents find themselves in a long-term care home
The issues before the court first arose when JD and MD, who are married, were forced to move into a private nursing home. JD has dementia and requires around-the-clock care. MD, to whom he is married, suffered a fall that required her to move into the home as well.
JD is retired and receives a pension. However, the couple is unable to carry both the costs of the nursing home they live in as well as the costs of the condo, which still has a mortgage. JD is unable to manage his personal affairs, and his powers of attorney are assigned to the Public Guardian and Trustee (“the PGT”). MD signed a Continuing Power of Attorney for Property to her son, DD, in 2019. However, she was still able to make decisions regarding her health.
Condo is listed for sale
On December 2, 2019, the PGT reached out to DD to ask about MD and JD’s plans for the condo. Property taxes had not been paid since 2018, and there were liens in place due to unpaid condo fees.
On March 26, 2020, DD issues his authority under the POA to give the PGT permission to prepare the condo for sale. MD was not made aware of these plans but found out about them on November 2 through the staff of the nursing home. She called DD to voice her opposition to the plans.
An offer on the condo was made just six days later. At this time, DD was still the power of attorney for property for MD. An offer was accepted, and a closing date was set for December 16, 2020.
Mother removes son from powers of attorney
MD revoked DD’s POA on November 30, ten days after the agreement for purchase and sale had been signed. On December 15, 2020, the PGT told the buyers that the transaction may not close due to MD’s refusal to cooperate. The buyers agreed to extend the closing date to March 15, 2021, in the hopes that the matter could be resolved.
MD asked the court not to allow the sale to go through, stating that she challenges the validity of DD’s POA and his actions taken on her behalf. Meanwhile, the PGT also asked to be allowed to sell the condo without MD’s consent.
The court sympathizes with MD’s position and found that while DD and the PGT acted lawfully in listing the condo, the PGT did not have the authority to extend the closing date unilaterally after MD have moved to manage her own property. As a result, the court found that the sale to the original buyers could not be enforced, but that the sale of the condo, of which JD owns half, could still go through. This is because the PGT has the authority to make decisions over JD’s property, and the evidence supports the need to sell the condo in order to access money to pay for the nursing home. The court ordered that the condo be re-listed.
At Derfel Estate Law, our Toronto estate lawyers can help you protect the financial, health, and personal interests of your loved ones. We provide strategic and compassionate advice and will take the time to thoroughly understand your specific concerns and desired outcome, and will act accordingly while making sure all relevant parties are protected throughout the process. Call us at 416-847-3580 or contact us online to schedule a consultation.