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POA Weekly – Week 9: Is an Attorney for Personal Care Entitled to Compensation?

The Substitute Decisions Act (“SDA”) does not contain any provision for the compensation of an Attorney for Personal Care. No Regulations exist to date under the SDA that are applicable to compensation for personal care. It is likely that the reason for such an absence of regulation stems from the premise that personal care decisions are ethical decisions and arguably, compensation should not be taken.  Additionally, personal care decisions are not easily quantifiable, whereas property decisions lend themselves more easily to calculation. Drafting considerations may include recovery for expenses and disbursements of the attorney.

While there is no statutory framework for compensation for providing personal care services, case law supports the general proposition that a court can fix and award such compensation when presented with an adequate record.[1] In fixing and awarding compensation, the court is guided by the overarching principles of reasonableness and proportionality.

The case of Re Brown,[2] addressed the issue of payment for the provision of personal care services.  The outcome of the court deliberations on the issue of compensation concluded that while compensation for personal care is sound in principle, the court could not award compensation since no evidentiary basis upon which to calculate the value of services and the reasonableness of the amount of the claim were put forward.[3]

Most recently, in Daniel Estate (Re)[4] the Ontario Superior Court awarded compensation of over $135,000.00 to two attorneys under a Power of Attorney for Personal Care for providing personal care services to an elderly couple for over six years. The attorneys presented affidavit evidence with an estimate of the hours and frequency of care provided and hired a Certified Canadian Life Care Planner to quantify the compensation sought. Justice Di Luca concluded:

When I assess the range of services provided over the number of years indicated, in the context of the Daniels’ financial means and the impact that those services had in terms of the Daniels’ independence and dignity, I have no hesitation concluding that the amount sought is reasonable and proportionate in the circumstances.[5]

Practically speaking, if compensation is to be awarded it is prudent to provide for such compensation in the power of attorney document itself.

[1] See Re Brown (1999) 31 ETR (2d) 164, 1999 CarswellOnt 4629 at para. 3; Childs v. Childs, 2015 ONSC 4036 at paras. 30-32, upheld on appeal 2017 ONCA 516; and Cheney v. Byrne (Litigation Guardian of), 2004 CarswellOnt 2674 (SCJ).

[2] Re Brown (1999) 31 ETR (2d) 164.

[3] See Re Brown otherwise for quantum meruit argument.

[4] Daniel Estate (Re), 2019 ONSC 2790.

[5] Ibid at para. 29.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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