When someone becomes incapable of managing their own affairs, whether financial or personal, they may have someone appointed as power of attorney for them. There are two types of powers of attorney. The first is for personal care, in which someone is responsible for the person’s day-to-day wellbeing, including decisions related to health. In addition, there are powers of attorney of property, which includes all decisions related to property and financial matters. In a recent decision from the Ontario Superior Court of Justice, two brothers could not agree on who should act as their mother’s power of attorney for property.
Two sons disagree on who should be power of attorney for property
The person requiring care is the mother of two grown men. She is 86-years-old and is suffering from dementia. She has been found to be incapable of managing her financial affairs.
One of her children, “MM” is the mother’s power of attorney for personal care. He also has a 50% interest in a home which he shares with the mother. At the time of the trial, there was no power of attorney for property, due in part to $400,000 that was found to be missing from the estate. MM’s brother, “AM” alleges that MM was responsible for that money going missing. As a result, the Public Guardian and Trustee (the “PGT”) was acting as the statutory guardian of her property.
The issue before the court arose when AM applied to obtain his mother’s power of attorney for property, MM originally responded that he should be given that obligation, but later revised his position to support the PGT continuing to act in that role.
Mother and MM don’t trust AM
The mother, who was represented by a lawyer, told the court she was mentally capable of determining who she wanted to have manage her financial affairs. She stated in a letter to the PGT that she did not want AM “to do anything with my life dealings. He has ripped off his father and is now waiting to rip me off.” She also filed an affidavit that stated AM has a history of financial misappropriation, fraud, and abuse of position as trustee or under power of attorney.
The court agreed with the PGT that where possible, the appointment of a guardian against the wishes of the incapable person should be avoided where possible. At the same time, there is a statutory consideration that suggests family should be responsible for these issues where possible.
Balancing mother’s wishes with those of son
The court noted that the mother is vulnerable and in need of someone to take care of her financial matters. In examining the situation of this case in particular, the court determined that there would be a high potential for conflict if AM were to manage the mother’s financial matters while MM manager her personal affairs. While there may be some inconveniences with the PGT taking on the role of trustee for property, those inconveniences don’t outweigh the possible problems of AM assuming that role.
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.