White v. White, 2017 ONSC 4550 http://canlii.ca/t/h53ft

A recent decision of the Ontario Superior Court of Justice illustrates the difficulties that can arise in cases where siblings who are antagonistic to one another are appointed joint attorneys for an aging parent. The case of White v. White involved Helen White, an 87 year old suffering from dementia, and her two sons, Mitchell and Raymond. Helen executed a Continuing Power of Attorney for Property in 1994 appointing her husband to be her attorney and in the event of his death, appointing Mitchell and Raymond. She never executed a Power of Attorney for personal care. Helen’s husband passed away in 2013 and Mitchell and Raymond soon became involved in a legal fight concerning Raymond’s trustee accounts for their late father’s estate. That matter settled in September 2015 and the Minutes of Settlement specifically provided that Raymond and Mitchell would continue to act as attorneys for property for Helen in a manner “consistent with past practices.” Nine months later however, Mitchell commenced an application to remove Raymond as an attorney for property and to appoint himself as Helen’s guardian for personal care. Raymond in turn sought an order appointing himself as Helen’s guardian for personal care but did not seek an order removing Mitchell as an attorney for property.

Mitchell’s complaints against Raymond included that Raymond refused to agree to purchase needed clothes for Helen, that he refused to authorize expenditures for someone to come and read to Helen, that he refused to have Helen’s blood pressure tested, that he refused to cooperate in addressing Helen’s obesity and that he refused to respect Helen’s adherence to the Roman Catholic faith. For his part, Raymond claimed that he followed the recommendations of Helen’s health care providers and noted that Helen’s diet had been recently changed at Mitchell’s request. Mitchell also conceded that he had in fact purchased new clothes for Helen and reimbursed himself from Helen’s bank account. There was no evidence led to suggest that Helen’s health care needs were not being met. The brothers assessed their working relationship differently with Mitchell describing it as ‘a struggle at best and a battleground at worst’ and Raymond describing it as ‘functional’. An additional issue in the case was that Mitchell and Raymond had provided Helen’s care facility with incompatible Emergency Care Plans.

Justice Taylor began his analysis regarding the attorney for property issue by noting that an attorney who was appointed by a person who subsequently became incapable should only be removed based on strong and compelling evidence of misconduct or neglect on the part of the attorney. Whether an attorney is acting in the best interests of the incapable person is a secondary issue. Justice Taylor was satisfied that Helen wished to have both her sons involved in making decisions relating to her financial affairs and that Mitchell had failed to present strong and compelling evidence of misconduct or neglect on Raymond’s part. The decision reads:

In my view, Mitchell overstates the extent of the disagreement between he and Raymond. While they may have differing views about expenditures that should be made for or on behalf of Helen, the evidence satisfies me that both are acting in good faith on Helen’s behalf. Although Raymond may not agree with some expenditures proposed by Mitchell, Mitchell has access to an account from which such expenditures can be paid. I do not find that Raymond is acting in bad faith in disagreeing with some of the expenditures proposed by Mitchell.

Justice Taylor also found it significant that nine months prior to commencing the present application Mitchell had signed Minutes of Settlement that stated he and Raymond would continue to act as attorneys for property for Helen ‘consistent with past practices.’

With respect to both sons’ competing requests to be appointed guardian of personal care for Helen, Justice Taylor found that both sons had Helen’s best interests in mind when making health care decisions on her behalf and that it was appropriate for both of them to be appointed guardians for personal care for Helen:

I also conclude that both Mitchell and Raymond have Helen’s best interests in mind when making health care decisions on her behalf. I do not fault Raymond for choosing to follow the advice of the healthcare professionals at Sunnyside. I do not fault Mitchell for questioning and indeed challenging the advice and recommendations of the healthcare professionals at Sunnyside. However, I do not think it appropriate that either Mitchell or Raymond be appointed Helen’s guardian for personal care to the exclusion of the other… Although Mitchell expresses concern about some aspects of Helen’s present care, the absence of any medical evidence that her health care needs are not being met is a telling omission. I conclude that there is no such evidence because Helen’s health care needs are being appropriately addressed… In my view it is appropriate for Mitchell and Raymond to be appointed guardians for personal care for Helen.

With respect to the conflicting Emergency Care Plans provided to Helen’s care facility, Justice Taylor preferred Raymond’s plan over Mitchell’s because Raymond’s plan was in accordance with that which had previously been provided by Helen’s husband before his death.

This case affirms that mere disagreements between attorneys do not constitute misconduct or neglect sufficient to justify the removal of one at the request of another. The wish of one attorney not to work with another attorney does not override the grantor’s wish that they do so. This result appears appropriate since an attorney always has the option of resigning from their position.