In Ontario, the resignation of an attorney is governed by the Substitute Decisions Act (“SDA”).^[1]

This blog will highlight the key provisions governing the resignation of an attorney and the legal consequences of doing so.

Resignation Requirements for an Attorney

Sections 11 and 52 of the SDA govern the recognition of attorneys for property and personal care, respectively. Both sections are worded similarly and require an attorney, if they have acted, to notify the following individuals and deliver a copy of resignation to:

(a) the grantor;

(b) any other attorneys under the power of attorney;

(c) the person named by the power of attorney as a substitute for the attorney who is resigning, if the power of attorney provides for the substitution of another person; and

(d) unless the power of attorney provides otherwise, the grantor’s spouse (if a continuing power of attorney for property) or partner and the relatives of the grantor who are known to the attorney and reside in Ontario, if

(i) the attorney is of the opinion that the grantor is incapable of managing property, and

(ii) the power of attorney does not provide for the substitution of another person or the substitute is not able and willing to act.^[2]

The two minor exceptions to this are for notification of a grantor’s spouse (if the attorney and the spouse are living separate and apart as a result of a relationship breakdown), and a relative of the grantor (if they are only related by marriage and there is a relationship breakdown between the grantor and spouse).^[3]

Another requirement of the resigning attorney is that they must give notice to third parties. Specifically, they are required to “make reasonable efforts to give notice of the resignation to persons with whom the attorney dealt on behalf of the grantor and with whom further dealings are likely to be required on behalf of the grantor”.^[4]

Consequences of Resignation

Termination of a Power of Attorney document

Section 12 and 53 of the SDA contemplate that both a continuing power of attorney for property and a power of attorney for personal care are terminated when either:

• the attorney dies,
• the attorney becomes incapable of managing property; or
• the attorney resigns.^[5]

This is unless the document contemplates a substitute attorney and that person is able and willing to act.

Statutory Guardianship Following Resignation

Statutory guardianship is a creature of the SDA. It provides that the Public Guardian and Trustee (the “PGT”) may be appointed as a guardian for someone incapable of managing their property who did not grant or does not have a Continuing Power of Attorney for Property.

The PGT becomes an incapable person’s statutory guardian in one of two ways:

1. First, if a person is a patient in a psychiatric facility and a certificate is issued under the Mental Health Act,^[6] certifying that the patient is incapable of managing property, the PGT de facto becomes the person`s statutory guardian.^[7]
2. Second, if a capacity assessor issues a certificate of incapacity stating that the person is incapable of managing property, the PGT becomes the person’s statutory guardian of property.^[8]

Accordingly, an individual may grant a Power of Attorney for Property and the chosen attorney(s) resign. The effect is that the Power of Attorney document is terminated. In the event the grantor is subsequently found incapable by a capacity assessor, then the PGT will be required to become their statutory guardian.

Case Example – Balacko v. Chepil-Coyle

In Balacko v. Chepil-Coyle,^[9] the court considered whether attorneys had effectively resigned. The respondent attorneys signed and delivered a Notice of Resignation declaring they were resigning as attorneys for personal care and for property. The Notice was delivered to the grantor and two of her siblings. It specifically stated that:

This Resignation is effective when received by You (the Grantor) and when received by your other (Five) children living in Ontario. — Janice L. Grant, cheryl M. Balacko, Catherine M. McFarlane, Daniel W. Chepil and r. David Chepil.

However, it was not delivered to the respondent attorneys brother David Chepil, or the grantor’s other relatives known to reside in Ontario. Shortly after delivering the Notice of Resignation, the Respondents declared that they had resigned in haste, and they were retaining their appointment as attorneys.^[10]

The court found that the resignation was not effective. In this regard, it determined that not all five children had received notification and resignation, and specifically, there was no evidence it was served on David Chepil, which meant the resignation could not be found effective.^[11]

Concluding Comments

In the event an attorney appointed pursuant to a Power of Attorney document acts for the grantor, and then decides to resign, the above-noted provisions of the SDA are an important consideration as well as the legal implications including termination of the document.

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[1] Substitute Decisions Act, 1992, S.O. 1992, c. 30.

[2] SDA at sections 11 and 52.

[3] SDA at sections 11(1.1) and 52(1.1).

[4] SDA at sections 11(2) and 52(2).

[5] SDA at sections 12 and 53.

[6] Mental Health Act, R.S.O. 1990, c. M.7.

[7] SDA at section 15.

[8] SDA at section 16.

[9] Balacko v. Chepil-Coyle, 2014 ONSC 6931.

[10] Ibid. at paras 1 – 10.

[11] Ibid. at paras 39 – 40.