A power of attorney is a legal document that grants one or more persons the authority to act on behalf of and make decisions for, another person. As individuals age, it is natural to lose some ability to make these decisions alone, so they often prepare continuing power of attorney documents before losing capacity. When they do so, the grantor will typically appoint someone close to them that they trust, like a spouse or adult child. However, what happens if the person appointed as attorney becomes incapable themselves? The Court of the King’s Bench of New Brunswick recently had to deal with a dispute in that precise scenario is the recent decision of Spellman v. Griffin.[1]
Background
The grantor of the power of attorney, Kenneth Griffin (“Kenneth”) was 92 years old at the time of this decision. A formal capacity assessment was completed in relation to Kenneth, and it was found that he was in a moderate-advanced stage of dementia and as such is unable to manage basic financial transactions.
Kenneth had previously prepared and signed a power of attorney document that appointed his wife, Helen Griffin (“Helen”) as his power of attorney. However, Helen had since also developed dementia and as such could not make decisions on Kenneth’s behalf. The power of attorney document that appointed Helen did not provide for any alternate power of attorney.
Kenneth and Helen have four adult children, Cindy Spellman (“Cindy”), Lisa Allen (“Lisa”), Mark Kenneth Griffin (“Mark”) and Kathy Whissell (“Kathy”). In January of 2025, Cindy filed an Application requesting an appointment as representative in relation to her father, based on his incapacity found in the formal assessment. Cindy had been appointed by Kenneth to act as his power of attorney in relation to only his investment accounts in 2014.
Lisa had previously consented to the appointment of Cindy as Kenneth’s representative; however, Mark and Kathy did not agree. Mark and Kathy indicated that they would be prepared to act jointly with Cindy as representatives for Kenneth’s financial and personal care matters but did not agree with Cindy being solely appointed.
In May of 2025, an interim consent order was made appointing Cindy and Mark as joint representatives for Kenneth’s personal care only. In August of 2025, Mark and Kathy filed their own application to be named representatives for Kenneth’s finances and personal care. In October, Cindy amended her initial application to include a joint appointment with Lisa.
The two applications were heard together.
Issues
- Who should be appointed representative for Kenneth for all his personal care matters and all his financial matters?
- What, if any, conditions should be attached to the Order appointing a representative or representatives for Kenneth?
Decision
Hackett, J. of the Court of King’s Bench of New Brunswick ultimately ruled in favour of Cindy and Lisa’s application and appointed them jointly as representatives for Kenneth in relation to all his personal care and financial matters.
In coming this decision, the Court began by looking at Section 37(1) of the Supported Decision-Making and Representation Act (“SDMRA”)[2] which is effectively New Brunswick’s version of the Ontario Substitute Decisions Act. Section 37(1) reads as follows:
On an application under subsection 36(1), the court may make a representation order appointing one or more representatives for a represented person if it is satisfied that
(a) each proposed representative
(i) consents to the appointment,
(ii) is eligible to be appointed, and
(iii) is suitable to be appointed,
(b) the represented person does not have the capacity to make all the decisions that are likely to arise in relation to all or some of
(i) their personal care matters,
(ii) their financial matters, or
(iii) their personal care matters and their financial matters, and
(c) a measure that is less intrusive than the appointment of a representative is not available to the represented person or, if available, would not meet the represented person’s needs.
In interpreting and applying the legislation, the Court found that, based off the formal capacity assessment, and Helen’s own incapacity, Kenneth wholly did not have capacity to make decisions for his property and personal care and a measure less intrusive than the appointment of a representative is not available in circumstances. As such, a representative had to be appointed. The question becomes who the most suitable representative in the circumstances is.
Section 37(2) of the SDMRA provides that:
In determining whether a person is suitable to be appointed as a representative, the court shall consider
(a) the nature of the relationship between the represented person and the proposed representative, including whether the relationship is one characterized by trust,
(b) the views of the represented person,
(c) the ability and availability of the proposed representative to exercise the powers and perform the duties of a representative, and
(d) any other factor that the court considers relevant.[3]
The Court also found additional principles to consider as enumerated by the NBCA in Saulnier v. Cook,[4] where it was found there is an overriding duty to act in the best interests of the incapable person and that ultimately, each case depends on the court’s individual assessment of what would further the best interests of the person in question.
As such, the Court here went through an analysis of each of the applicant’s relationships with their father as well as their ability to provide them support. In doing so, the Court found that all four applicants had a good relationship with their father, and that all of these relationships were characterized by trust. The Court could not ascertain which applicant was closest with Kenneth.
However, the Court did find it notable that Cindy had previously been appointed under power of attorney for her father’s investment accounts. Additionally, the Court found that Cindy had been primarily responsible for the financial affairs for both of her parents in the recent years. Another notable feature was that initially, all of the siblings consented to Cindy’s appointment as attorney once Helen became incapable, but Mark and Kathy only withdrew their consent based on concerns with Cindy’s plan for their parents properties, as Mark and Kathy had been residing on and using their properties rent free for a number of years. This indicates that they felt, at least at some point, that Cindy was a suitable decision maker.
Cindy and Lisa had proposed to sell the properties that Mark and Kathy were using rent free to Mark and Kathy or otherwise transfer for them in lieu of their inheritance. Mark and Kathy argued that this amounted to and effective distribution of the estate during Kenneth’s lifetime, which is wholly improper. The Court found that this plan alone does not make them unsuitable, and in fact selling the properties may very well be in Kenneth’s best interests, as he requires around the clock 24-hour care, which can be expensive.
Ultimately, based on the evidence before the Court, it was determined that Cindy had the greatest understanding of the financial situation and affairs of Kenneth. As such, it would clearly not be in Kenneth’s best interests to appoint Mark and Kathy as representatives to the exclusion of Cindy.
Mark and Kathy, in the alternative sought joint appointment with Cindy, as was their initially intention. While Mark and Cindy had been able to jointly make decisions regarding Kenneth’s personal care through the interim order, the Court had concerns about a joint appointment resulting in conflict, as the children are particularly divided over the financial concerns. Without any option for a third-party representative, the Court opted to side with Cindy and Lisa’s application, appointing them jointly as Kenneth’s representatives.
However, the Court did place a number of conditions on this appointment, pursuant to section 38 of the SDMRA.[5] These conditions included inter alia, providing Mark and Kathy with full financial disclosure in relation to Kenneth’s affairs, and a requirement that Cindy and Lisa provide Mark and Kathy at least 30 days notice of any intention to transfer, sell, or otherwise dispose of any real property belonging to Kenneth.
Final Thoughts
The Court here had to face a difficult decision and had to balance several competing and aligning interests. All parties involved had a strong relationship with their father, and it appeared as though every party would be a suitable candidate to be Kenneth’s representative. Ultimately, it seems as though the Court opted to take a practical approach to deciding who to appoint by siding with the party that already had the best understanding of their father’s finances. Notably, the Court did not place any weight on each parties’ relationship with their father. However, it appears that the Court had significant concerns about the relationship between the children resulting from the contentious litigation, as they refused to appoint them jointly, as sought by Mark and Kathy. This goes to show that this type of litigation can create irreconcilable differences within families and can go a long way to damaging familial bonds that were once strong. As such, any person creating a power of attorney document should seriously consider appointing alternate attorneys, to ensure that any future dispute of this nature is completely avoided altogether.
—
[1] Spellman v Griffin, 2026 NBKB 6
[2] Supported Decision-Making and Representation Act, SNB 2022, c 60, at s.37(1)
[3] Ibid at s.37(2)
[4] Saulnier v. Cook, 2016 NBCA 40, 2016 CarswellNB 322, 2016 CarswellNB 323
[5] Supra note 2 at s.38
Written by: Mark Polese
Posted on: April 10, 2026
Categories: Commentary
A power of attorney is a legal document that grants one or more persons the authority to act on behalf of and make decisions for, another person. As individuals age, it is natural to lose some ability to make these decisions alone, so they often prepare continuing power of attorney documents before losing capacity. When they do so, the grantor will typically appoint someone close to them that they trust, like a spouse or adult child. However, what happens if the person appointed as attorney becomes incapable themselves? The Court of the King’s Bench of New Brunswick recently had to deal with a dispute in that precise scenario is the recent decision of Spellman v. Griffin.[1]
Background
The grantor of the power of attorney, Kenneth Griffin (“Kenneth”) was 92 years old at the time of this decision. A formal capacity assessment was completed in relation to Kenneth, and it was found that he was in a moderate-advanced stage of dementia and as such is unable to manage basic financial transactions.
Kenneth had previously prepared and signed a power of attorney document that appointed his wife, Helen Griffin (“Helen”) as his power of attorney. However, Helen had since also developed dementia and as such could not make decisions on Kenneth’s behalf. The power of attorney document that appointed Helen did not provide for any alternate power of attorney.
Kenneth and Helen have four adult children, Cindy Spellman (“Cindy”), Lisa Allen (“Lisa”), Mark Kenneth Griffin (“Mark”) and Kathy Whissell (“Kathy”). In January of 2025, Cindy filed an Application requesting an appointment as representative in relation to her father, based on his incapacity found in the formal assessment. Cindy had been appointed by Kenneth to act as his power of attorney in relation to only his investment accounts in 2014.
Lisa had previously consented to the appointment of Cindy as Kenneth’s representative; however, Mark and Kathy did not agree. Mark and Kathy indicated that they would be prepared to act jointly with Cindy as representatives for Kenneth’s financial and personal care matters but did not agree with Cindy being solely appointed.
In May of 2025, an interim consent order was made appointing Cindy and Mark as joint representatives for Kenneth’s personal care only. In August of 2025, Mark and Kathy filed their own application to be named representatives for Kenneth’s finances and personal care. In October, Cindy amended her initial application to include a joint appointment with Lisa.
The two applications were heard together.
Issues
Decision
Hackett, J. of the Court of King’s Bench of New Brunswick ultimately ruled in favour of Cindy and Lisa’s application and appointed them jointly as representatives for Kenneth in relation to all his personal care and financial matters.
In coming this decision, the Court began by looking at Section 37(1) of the Supported Decision-Making and Representation Act (“SDMRA”)[2] which is effectively New Brunswick’s version of the Ontario Substitute Decisions Act. Section 37(1) reads as follows:
On an application under subsection 36(1), the court may make a representation order appointing one or more representatives for a represented person if it is satisfied that
(a) each proposed representative
(i) consents to the appointment,
(ii) is eligible to be appointed, and
(iii) is suitable to be appointed,
(b) the represented person does not have the capacity to make all the decisions that are likely to arise in relation to all or some of
(i) their personal care matters,
(ii) their financial matters, or
(iii) their personal care matters and their financial matters, and
(c) a measure that is less intrusive than the appointment of a representative is not available to the represented person or, if available, would not meet the represented person’s needs.
In interpreting and applying the legislation, the Court found that, based off the formal capacity assessment, and Helen’s own incapacity, Kenneth wholly did not have capacity to make decisions for his property and personal care and a measure less intrusive than the appointment of a representative is not available in circumstances. As such, a representative had to be appointed. The question becomes who the most suitable representative in the circumstances is.
Section 37(2) of the SDMRA provides that:
In determining whether a person is suitable to be appointed as a representative, the court shall consider
(a) the nature of the relationship between the represented person and the proposed representative, including whether the relationship is one characterized by trust,
(b) the views of the represented person,
(c) the ability and availability of the proposed representative to exercise the powers and perform the duties of a representative, and
(d) any other factor that the court considers relevant.[3]
The Court also found additional principles to consider as enumerated by the NBCA in Saulnier v. Cook,[4] where it was found there is an overriding duty to act in the best interests of the incapable person and that ultimately, each case depends on the court’s individual assessment of what would further the best interests of the person in question.
As such, the Court here went through an analysis of each of the applicant’s relationships with their father as well as their ability to provide them support. In doing so, the Court found that all four applicants had a good relationship with their father, and that all of these relationships were characterized by trust. The Court could not ascertain which applicant was closest with Kenneth.
However, the Court did find it notable that Cindy had previously been appointed under power of attorney for her father’s investment accounts. Additionally, the Court found that Cindy had been primarily responsible for the financial affairs for both of her parents in the recent years. Another notable feature was that initially, all of the siblings consented to Cindy’s appointment as attorney once Helen became incapable, but Mark and Kathy only withdrew their consent based on concerns with Cindy’s plan for their parents properties, as Mark and Kathy had been residing on and using their properties rent free for a number of years. This indicates that they felt, at least at some point, that Cindy was a suitable decision maker.
Cindy and Lisa had proposed to sell the properties that Mark and Kathy were using rent free to Mark and Kathy or otherwise transfer for them in lieu of their inheritance. Mark and Kathy argued that this amounted to and effective distribution of the estate during Kenneth’s lifetime, which is wholly improper. The Court found that this plan alone does not make them unsuitable, and in fact selling the properties may very well be in Kenneth’s best interests, as he requires around the clock 24-hour care, which can be expensive.
Ultimately, based on the evidence before the Court, it was determined that Cindy had the greatest understanding of the financial situation and affairs of Kenneth. As such, it would clearly not be in Kenneth’s best interests to appoint Mark and Kathy as representatives to the exclusion of Cindy.
Mark and Kathy, in the alternative sought joint appointment with Cindy, as was their initially intention. While Mark and Cindy had been able to jointly make decisions regarding Kenneth’s personal care through the interim order, the Court had concerns about a joint appointment resulting in conflict, as the children are particularly divided over the financial concerns. Without any option for a third-party representative, the Court opted to side with Cindy and Lisa’s application, appointing them jointly as Kenneth’s representatives.
However, the Court did place a number of conditions on this appointment, pursuant to section 38 of the SDMRA.[5] These conditions included inter alia, providing Mark and Kathy with full financial disclosure in relation to Kenneth’s affairs, and a requirement that Cindy and Lisa provide Mark and Kathy at least 30 days notice of any intention to transfer, sell, or otherwise dispose of any real property belonging to Kenneth.
Final Thoughts
The Court here had to face a difficult decision and had to balance several competing and aligning interests. All parties involved had a strong relationship with their father, and it appeared as though every party would be a suitable candidate to be Kenneth’s representative. Ultimately, it seems as though the Court opted to take a practical approach to deciding who to appoint by siding with the party that already had the best understanding of their father’s finances. Notably, the Court did not place any weight on each parties’ relationship with their father. However, it appears that the Court had significant concerns about the relationship between the children resulting from the contentious litigation, as they refused to appoint them jointly, as sought by Mark and Kathy. This goes to show that this type of litigation can create irreconcilable differences within families and can go a long way to damaging familial bonds that were once strong. As such, any person creating a power of attorney document should seriously consider appointing alternate attorneys, to ensure that any future dispute of this nature is completely avoided altogether.
—
[1] Spellman v Griffin, 2026 NBKB 6
[2] Supported Decision-Making and Representation Act, SNB 2022, c 60, at s.37(1)
[3] Ibid at s.37(2)
[4] Saulnier v. Cook, 2016 NBCA 40, 2016 CarswellNB 322, 2016 CarswellNB 323
[5] Supra note 2 at s.38
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