January 30, 2013
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It has been over 15 years since the Substitute Decisions Act of 1992 was proclaimed in the province of Ontario. We now have a history of the impact of this statute in reported cases to look back and see if it succeeded with its intended purpose. The objective was to create a comprehensive legislative scheme to replace three statutes in respect of the governance of mental incapacity and substitute decision-making for incapable adults, and to create a method to enable capable individuals to choose a substitute decision-maker in the event of their incapacity. The act sets out the requirements for an appointment of an attorney for property and for personal care.

The act also provides for a definition of capacity to manage property and a definition to manage personal care, as well as the duties of such a guardian, all in some considerable detail. The duties of an attorney appointed under a power of attorney are the same as the duties of a guardian appointed by the court.

What the history of the Substitute Decisions Act tells us is that it generally achieved the purpose intended, which was to facilitate the appointment of a substitute decision-maker to protect the person and property of the incapable. However, the law of unintended consequences has overwhelmed that agenda and now the courts are pre-occupied with persons vying for the position of attorney for property (the position of attorney for personal care…not so much).

The legal position of the incapable has become a sidebar to the main story. The incapable, whose interest is being protected by the court, watches from the sidelines as family members and others fight with each other over whom shall act as guardian or attorney so as to have direct control of the incapable's property, often not with the incapable's best interests being given even a passing glance. It is the function of the Substitute Decisions Act to re-focus the litigation on the incapable who needs the court's supervision of these opposing parties for protection of property and person.

The first issue which engages the court, in an application before it, is whether the alleged incapable family member is able to manage his or her affairs. One of the methods provided by the statute is for such a person to undergo a capacity assessment on a voluntary basis. If found to be incapable, then a Certificate of Incapacity is issued by a qualified capacity assessor and the Public Guardian and Trustee of Ontario becomes the statutory guardian of the incapable's property and is solely interested in the benefit of any plan for the incapable person.

The Public Guardian and Trustee can ultimately be replaced by a family member who presents a satisfactory management plan for the regulation of the financial affairs of the incapable. The Public Guardian and Trustee will review the plan and make comments in an effort to ensure a more favourable plan for the incapable and if necessary, will appoint a legal representative in a contested case to give voice to the capable person's interests.

A reading of the cases reveals that it is common for a family members to have been managing the affairs of of an elderly parent by way of a power of attorney for property that was put in place years ago when the parent was capable. But as the sun sets on his or her capacity to contribute to the discussion, the conversation regarding their property diminishes and the pattern is established whereby the attorney has really taken over the affairs of the elderly parent without a declaration of incapacity having even been contemplated.

While I am quite sure that this does not present either a legal or a moral problem where family members have acted with integrity, the reported cases reveal the conflict that is created when an attorney is brought before the court to account for the management of the affairs of his or her parents. To avoid the effect of the Substitute Decisions Act, the attorney sometimes declares that the parent has been and continues to be capable and has, in fact, been involved in all of the decision-making regarding his or her finances and approved everything that was done by the attorney. In this instance, the attorney merely casts himself or herself as an agent, helping the capable parent to carry out his or her managerial decisions and therefore the attorney cannot be required to account as the attorney's power has never been initiated. The attorney who asserts that the power of attorney granted to him or her has not yet been initiated because the parent is still capable, should look at the date it was signed, because every continuing power of attorney for property since the passing of the Substitute Decisions Act takes effect from the minute it was signed, unless otherwise provided.

Other members of the family who are unhappy with the way the parent's finances are being managed will seek to remove the attorney and to replace him or her by appointing themselves. The Public Guardian and Trustee will have a very real role in assisting the court as to whether one applicant is better than another and will also assist in the financial view of the affairs of the incapable.

Some family members, rather than instituting the court process, will approach their vulnerable parent to sign a fresh power of attorney, revoking the previous one so that they can take over the incapable's finances. This is usually followed by the first attorney being aghast at the prospect of being exposed, who then accuses the vulnerable parent of ungratefulness and presents a further power of attorney to revoke the new one. The process, known as "dueling attorneys" is frowned upon by the court for the obvious pressure it puts upon the incapable person and the predatory nature of the process, and is guaranteed to ensure a vigilant and lengthy intervention by the Public Guardian and Trustee to protect the finances of the incapable.

The undertaking of a capacity assessment can, of course, be resisted by the person whose capacity is going to be assessed as it does require that person's consent or a court order. Under the Substitute Decisions Act, a person is presumed to be capable until declared to be incapable. The Public Guardian and Trustee will also seek the least intrusive solution so that if a power of attorney as created while the elderly person was capable, the court will sometimes impose conditions on the attorney such as greater financial reporting requirements instead of opting for the more rigorous approach through a guardianship appointment for property of the incapable person.

In the absence of an effective power of attorney however, an application for guardianship is the only real solution. In addition to a capacity assessment, the court will require a detailed management plan showing the benefit to the incapable of the plan and requiring regular reporting as to the income and assets of that person. It will also fix the remuneration of the attorney for pains taken on behalf of the incapable at the time of the application and in the future. The Public Guardian and Trustee must approve this plan before it is presented to the court.

Everybody knows that going to court costs money. An incapable parent should not have to pay for the desire of one or more of his or her children to continue battling their siblings over the right to govern the incapable parent's affairs. It is a series mistake to believe that all parties to contested litigation will have their costs paid by the estate of the incapable person. The court has long recognized that many disputes are the product of family squabbles over control of family businesses and other properties, and in the view of this writer, are borne out of pure greed and the nee for power. The quest to run the incapable parent's financial affairs is sometimes viewed as a part-time job with opportunities to influence the vulnerable parent to right some imagined inequity from times past so as to more generously favour the attorney who has the ear of the incapable parent. This can be very ugly if the vulnerable parent's Will is changed under this influence.

I note in passing that court fights over the personal care of an elderly parent seem to be quite rare because this job does not come with access to somebody else's debit card. This may explain the lack of zeal for the job.

In the end, the Substitute Decisions Act has eventually served its purpose, but in the wrong hands it often begets the invasion of the privacy of a vulnerable family member whose interests under the act are paramount.

John Johnson is a partner with the law firm of Nelligan O'Brien Payne LLP (www.nelligan.ca) with offices in Ottawa, Kingston, Vankleek Hill and Alexandria.

[This article was originally published in the January/February 2013 issue of Fifty-Five Plus Magazine.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.