I recently came across an article suggesting that upon the death of a spouse, the surviving spouse should consider updating her or his will, powers of attorney, and beneficiary designations to registered investments and insurance policies. This makes sense, particularly if the deceased spouse is a beneficiary or the appointed attorney. A recent Ontario decision also makes the point that one should consider updating one’s powers of attorney if the existing ones were made years ago, when one’s financial and health circumstances were markedly different than at present time.

The main parties to Corewyn v. McCulloch, 2015 ONSC 6039 were Donna, Bill, Ena, and Sara. Bill was Ena’s second spouse. Donna was Ena’s daughter from a prior marriage. Sara is Bill’s daughter from a prior marriage. Donna applied for an order appointing her as the guardian of the person and property of Ena. Bill, who was appointed as Ena’s attorney for property and personal care pursuant to powers of attorney granted in February 1999, opposed the application.

The following are the agreed upon facts:

1. Bill was Ena’s attorney for property and personal care executed in February 1999.
2. Ena was diagnosed with Alzheimer’s Dementia in 2007. Ena was incapable of managing her property and personal care at and prior to the hearing of the application in 2015.
3. Even though Bill was the appointed attorney, Donna had been involved in Ena’s personal care and property management since at least 2007. Donna was in effect the de facto attorney. She kept Bill informed and consulted Bill when making decisions impacting on Ena.
4. Donna provided care to Bill for many years.
5. Bill was not actively involved in Ena’s healthcare decisions.
6. Bill acknowledged that Donna always had her mother’s best interests in mind in making healthcare decisions.

Mistrust amongst Donna, Bill, and Bill’s daughter, Sara, appeared to have surfaced in late 2014 or early 2015. This resulted in Bill making powers of attorney appointing Sara; previously he had entrusted Donna with this responsibility. Sara and Donna each took steps to empty a joint account belonging to their parents.

As there was no question about Ena’s lack of capacity, the only question before the court was whether the powers of attorney for property and personal care granted to Bill still served Ena’s best interests.

Mr. Justice Sweeney of the Superior Court confirmed that in Ontario, a person’s choice of an attorney under a power of attorney and personal care should be given considerable respect. At paragraph 18 of his decision, Justice Sweeney quoted Somers J.’s decision in Glen v. Brennan:

[18]     Somers J. in Glen v. Brennan, [2006] O.J. No. 79, stated:

The courts have generally taken the view that a written power of attorney executed by the donor at a time when he was apparently sound of mind (and there is nothing in the material to suggest otherwise) is simpler to deal with and gives the donee more flexibility in dealing on behalf of the donor. Also favouring a continuation of the appointment respects the wishes of the person who made the grant. Chief Justice Hickman of the Newfoundland Supreme Court Trial Division in the case of Re Hammond Estate (1998), 25 E.R.T. (2d) 188 said at para. 31:

There must be strong and compelling evidence of misconduct or neglect on the part of the done duly appointed under an enduring power of attorney before a court should ignore the clear wishes of the donor and terminate such power of attorney.

The excerpt says that there must be misconduct or neglect. In this case, the court found no evidence of misconduct or neglect on Bill’s part.

But this was not the end of the application. At paragraph 19, Justice Sweeney ruled that in his view, in examining the best interests of the person, the court must take into consideration the changing nature of a person’s needs and always focus on what is in the best interests of the person at the particular time the appointment is sought to be made. The court had no difficulty finding the appointment of Donna as the guardian of the person and property for Ena to be in Ena’s best interests.

In arriving at the decision, Justice Sweeney made no criticism of either of Bill and Donna. The justice encouraged Donna to mend her relationship with Bill and for Bill to consider Donna’s history of care for him and Ena when assessing her conduct.

It may have been too late for Ena to change her powers of attorney in 2007 or thereafter. She had already been diagnosed with Alzheimer’s Dementia and might have already become incapable of revoking and executing powers of attorney for property and personal care by 2007. For whatever reason, Ena chose Bill as the attorney in February 1999. As her health began to decline, though, Ena might have revoked the February 1999 powers of attorney to appoint Donna. If this happened, this application might have been avoided, especially since there was no mistrust between Bill and Donna until late 2014 or early 2015.

It is not uncommon for an appointed attorney to throw up his or her hand and decline to be “it”. When this happens, instead of relying on a de facto attorney, the grantor ought to formally appoint a new attorney.