Estate Planning

Guardianship Applications: Strong and Compelling Evidence

By Hull & Hull LLP

I am often approached by clients who are anxious to replace a relative’s attorney for property or personal care on the basis that the attorney is a non-family member or simply not up to the job. Many family members feel it is their right to take over the guardianship of a relative, especially a loved one. 

However, the bar that the court has set in terms of removing an attorney, with the obvious exception of misappropriation of funds, is a high one. 

Usually, the first issue that the court considers in any application to remove an attorney is whether there is a valid and subsisting power of attorney. If the answer to that question is yes, the court must then determine whether the behaviour of the attorney has been in the best interests of the incapable person.

The courts are rightly wedded to the principle that so long as a person has competently executed a power of attorney, they are secure in the knowledge that their affairs will be managed by a person in whom they trust. 

Canadian courts have held that there must be strong and compelling evidence of misconduct or neglect on the part of an attorney before a court should ignore the clear wishes of the grantor and terminate a power of attorney. 

Somewhat complicating the fact is that sections 22(3) & 55(2) of the Ontario Substitute Decisions Act, state that a court should not appoint a guardian for either property or personal care "if it is satisfied that the need for decisions to be made will be met by an alternative course of action that does not require the court to find the person to be incapable… and is less restrictive of the person's decision making rights than the appointment of a guardian". Subsisting powers of attorney meet those requirements. 

What then constitutes strong and compelling evidence? Hammond (Re) (1999), 25 E.T.R. (2d) 188 (Nfld. S.C.T.D.) (no link available) is a leading decision. The court held that there was insufficient evidence to substantiate allegations of misconduct. According to Hickman J., there was no evidence that the attorney for property had acted in a manner which was detrimental to the incapable person. The court therefore dismissed an application to have him removed. 

Thanks for reading. Ciao

Justin

Full post as published by Toronto Estate Law Blog on August 12, 2008 (boomark / email).