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Determining the Substitute Decision Maker of an Incapable Person

Crane v Metzger, 2018 ONSC 5382 (CanLII), http://canlii.ca/t/hv2vl  

The case of Crane v Metzger, 2018 ONSC 5382 (CanLII), http://canlii.ca/t/hv2vl involved a dispute over who should be the substitute decision maker of an elderly woman who was found to be incapable to make decisions with respect to both her property and her personal care. The dispute was between the woman’s daughter and the woman’s brother.

The daughter sought to have her uncle removed as her mother’s attorney under a continuing power of attorney for property. The daughter wished to be appointed as her mother’s sole permanent guardian of the property and of the person. The mother was 84 years old with vascular dementia. Both parties agreed, after capacity assessments were conducted, that the mother was incapable of making decisions with respect to both her property and her personal care. Her assets were valued at approximately $700,000.00 and she was living in a long-term care facility.

The daughter advanced a lengthy list of grievances against her uncle, including that the uncle was mishandling her mother’s finances, care, and was not acting in her mother’s best interests. The daughter also asserted that the mother’s current long-term care home was “sub-standard” and did not suit her advanced needs.

The uncle alleged that the daughter had behaved recklessly with regard to her mother’s care, viewed her mother’s assets as her own, and that he was a prudent manager of his sister’s property and personal care. Further, the uncle advised the court of one particular incident when the daughter lied to him and took her mother to Seattle when the daughter told him she was taking her to Wasaga Beach. The mother did not have proper travel medical insurance at the time. The daughter had also secured a passport for her mother under false pretenses.

The court found, based on the evidentiary record, that the daughter had taken her mother to the bank to withdraw funds from her account while knowing that she was incapable of doing so. When the withdrawals were brought to the attention of the bank, “the bank agreed that they were at fault for allowing the withdrawal by [the daughter] and [the mother]”.[1] More than $10,000.00 was returned to the account by the bank. The court concluded that the daughter “cannot be trusted to deal with the financial welfare of [her mother]”.[2]

With respect to the uncle’s actions, the court found that “the record discloses that [the uncle] is doing the best he can in the circumstances” and that the daughter “failed to provide strong and compelling evidence of misconduct or neglect on the part of the attorney or that the best interests of [her mother] required the removal of [the uncle] as her attorney.”[3] The motion was dismissed.

This decision reinforces the burden that must be met when seeking to remove an attorney, as previously set out in the case Teffer v Schaeffers 2008 CanLII 46929 (ON SC), http://canlii.ca/t/20rvl

[1] Crane v Metzger 2018 ONSC 5382 at para 36.

[2] Crane v Metzger 2018 ONSC 5382 at para 37.

[3] Crane v Metzger 2018 ONSC 5382 at para 44.

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