When appointing a guardian for an incapable person, the court is to examine the following factors, as per the Substitute Decisions Act:

• whether the proposed guardian is the attorney under a continuing power of attorney;
• the incapable person’s current wishes, if they can be ascertained; and,
• the closeness of the applicant’s relationship to the incapable personand, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.[1]

A recent case which seems to provide a new analysis of the second of these factors is the case of Rudin-Brown et al v. Brown  and Brown v. Rudin Brown et al, [2] . This was a case where a person had been living with her son for more than 10 years. In 2009, she had granted a power of attorney to her sister in law, and named that sister in law’s son as her alternate. Around the same time, she had granted a power of attorney for personal care jointly to her own son and her daughter. In 2016, the son had obtained new powers of attorney naming himself solely for both property and personal care.

After setting aside the 2016 Powers of Attorney as the products of undue influence, the court turned to the question of guardianship, and determined that the sister in law should be appointed as the guardian for property, as she had been under the 2009 Power of Attoney for Property. Williams J said  that he considered it significant that she had not named her son as her attorney or substitute attorney for property in 1996 or 2009 and conclude that she had reasons for not having done so. He also considered the son’s financial dependency on his mother, and his strong desire to continue living in her home preclude him from fulfilling this role due to conflict of interest.[3]”

This case may also be instructive on another point. As the ability to record audio and video have become ubiquitous, it is often tempting for parties involved in this kind of litigation to record the conversations and other interactions of an incapable person with their family or others. In this case, the sister in law and daughter, on the one side, and son, on the other, brought competing applications for guardianship. In the course of this litigation, the son began to surreptitiously record all of his mother’s telephone conversations, and many of her conversations in person.

In this case, Williams J appointed the daughter,  as guardian of the person, as she had been the Attorney for Personal Care under the 2009 Power of Attorney. In providing reasons for not appointing the son as guardian, even though he had been included as Attorney, the court cites the son’s recording of his mother’s conversations as being “highly intrusive and not in her best interests”[4].

—

[1] SDA, ss 24(5) and 57(3).

[2]Rudin-Brown et al v. Brown AND Brown v. Rudin-Brown et al, 2021 ONSC 3366

[3] Supra, at para 170

[4] Supra at para 172