Introduction

It is well settled that attorneys for property have a legal duty to maintain financial accounts and records of all transactions involving the grantor or incapable person in the management of his or her property. An abundance of case law has noted that this is a serious responsibility that requires an attorney for property to keep good, detailed, and understandable accounts that reflect their diligence and transparency.

When it comes to attorneys for personal care, the question as to whether the same stringent requirements apply concerning decisions made by them on behalf of the incapable grantor, is no less clear even if lacking in an abundance of similar case law. Indeed, though there is limited case law in this regard, the legislation and accompanying regulations set out clear and concise obligations that attorneys for personal care must be mindful of.

The Law

In general, section 68 of the Substitute Decisions Act^[1] gives authority to the court to make an order for directions where there is a guardian or power of attorney for personal care on any question arising in the guardianship or under the power of attorney for personal care. The request is to be made on application where no guardian has been appointed. An attorney under a power of attorney for personal care or any other person with leave of the court may apply for directions.^[2]

The SDA provides the court with wide discretion to make an Order that it deems appropriate in the circumstances. Specifically, subsection 4 of the SDA provides that “A court may by order give such directions as it considers to be for the benefit of the person and consistent with this Act.”^[3]

Section 66 (4.1) of the Substitute Decisions Act provides that a guardian shall, in accordance with the regulations, keep records of decisions made by the guardian on the incapable person’s behalf. ^[4]

Pursuant to section 3 of Accounts and Records of Attorneys and Guardians, O Reg 100/96, the records maintained by an attorney under a power of attorney for personal care and a guardian of the person shall include:

1. a list of all decisions regarding health care, safety and shelter made on behalf of the incapable person, including the nature of each decision, the reason for it and the date;
2. a copy of medical reports or other documents, if any, relating to each decision;
3. the names of any persons consulted, including the incapable person, in respect of each decision and the date;
4. a description of the incapable person’s wishes, if any, relevant to each decision, that he or she expressed when capable and the manner in which they were expressed;
5. a description of the incapable person’s current wishes, if ascertainable and if they are relevant to the decision;
6. for each decision taken, the attorney’s or guardian’s opinion on each of the factors listed in clause 66 (4) (c) of the Substitute Decisions Act.

For ease of reference, section 66 (4) (c) of the Substitute Decisions Act sets out a list of factors to be considered when making a decision based on an incapable person’s best interests. Such factors include:

1. Whether the guardian’s decision is likely to,

i) improve the quality of the person’s life,

ii) prevent the quality of the person’s life from deteriorating, or

iii) reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.

2. Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.^[5]

Application in Case Law

The case of Hannis v. Tompkins^[6] concerned Hilda Tompkins (“Hilda”), who suffered from Alzheimer’s disease and was not capable of managing her affairs. In 1993, with the assistance of counsel, she granted a power of attorney to the Respondents, Gary Boult and Anne-Marie Boult (the “Boults”). The Applicant in this case alleged that the Boults had mismanaged Hilda’s affairs and exceeded the scope of their authority under the power of attorney given that they made decisions related to Hilda’s personal care.

The Applicant argued that even though the Boults did not have a power of attorney for personal care, they functioned as if they had that authority and ought to be bound by section 66(4.1) of the Substitute Decisions Act. The court in this case agreed with the Applicant and stated as follows:

Because the Respondents have held themselves out to caregivers as having a power of attorney for personal care (for example, Mr. Boult specifically did not correct this impression with Cedarwood Village when his position was clarified), they should be bound by s. 66(4.1) of the Substitute Decisions Act. The Plaintiff is therefore entitled to production of records, revealing “decisions made by the guardian on the incapable person’s behalf”.

Takeaway

The case law that deals directly with an attorney’s obligation to keep records of personal care decisions made on an incapable person’s behalf is very limited. It is often the case that the records of an attorney for personal care are ordered to be released for the purpose of determining the adequacy and quality of care. As such, attorneys and guardians have a positive obligation to keep these records and it is prudent to consider the obligations set out in the Substitute Decisions Act and accompanying regulations. Our team have been involved in a number of court matters where orders have issued similar to accounting orders in order to resolve conflict amongst family members.

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[1] Substitute Decisions Act, 1992, SO 1992, c 30, s. 68 [SDA].

[2] Sly v. Curran, 2008 CaswellOnt 4301, at para 13.

[3] SDA, s. 68(4).

[4] SDA, s.66 (4.1).

[5] SDA, s 66 (4) (c).

[6] Hannis v. Tompkins, 2001 CarswellOnt 4853, [2001] O.J. No. 5583.