One of the biggest reasons people undertake estate planning exercises is to provide for their family and loved ones in the event of their death, while also trying to ensure that the estate assets are protected to the furthest extent possible in order to keep as much money inside the estate as possible. This often means creating a will or taking other measures to ensure that litigation is unlikely to occur. However, even the best-laid plans can fail to eliminate this risk. A recent decision from the Ontario Superior Court of Justice serves as a good example of what can happen when family members don’t agree on how an incapable party’s assets are managed, in this case through a power of attorney, which is the appointment of someone to oversee an individual’s health and finances when they are no longer able to do so themselves.

Alzheimer’s Leads to Dispute of Guardianship of Property

The case centred around a 92-year-old woman who suffered from Alzheimer’s Disease. She lived in her home under the care of her daughter (“C”) who was her guardian for personal care. She also had three sons, referred to as “M,” “P,” and “A.” M was her litigation guardian and shared guardian of personal care responsibilities with C. The court had earlier appointed BMO Trust Company (“BMO”) as her guardian for property under the Substitute Decisions Act, 1992.

Some of the siblings did not agree with the appointment of BMO. C and P appealed the order, with P seeking leave from the Court of Appeal all the way to the Supreme Court of Canada, a request which was denied in May 2018.

These actions prevented BMO from passing their accounts as they had been directed to do, or, in other words, having their actions approved by the Court. When they tried to pass the accounts following P’s failure to go to the Supreme Court, they were once again met with objections, with P seeking to have the responsibilities of guardianship of property transferred to himself and C. P’s objection raised what the court described as “allegations of collusion, conspiracy and an alleged secret agreement between the litigation guardian and BMO Trust Company as guardian of property.” No affidavit evidence was filed to support these allegations.

One Sibling has Enough

The litigation guardian, M, responded to his brother’s latest move with an attempt to have P labelled as a vexatious litigant, alleging he was “engaged in a bad faith attempt to re-litigate matters finally determined by the Court of Appeal.”

It did not take long for the court to agree with M, writing,

“In our view, there is no merit to these appeals. They are the culmination of unnecessarily protracted litigation that has depleted (the mother’s) estate, wreaked havoc on the emotional and financial health of all concerned, wrongfully maligned Section 3 Counsel, and wrongfully impugned the applications judge. It is past time for the litigation over (the mother) to end.”

The court also denied P leave to participate in the trial, stating,

“I would acknowledge that in many cases it will be in the interests of the incapable person that one or more of her children be accorded standing in a passing of accounts.  I can see no such interest when the child and future beneficiary of the incapable person wishes to put forward vexatious arguments that can only cause family strife, further delay and expense and which will dissipate (the mother’s) assets, which she may well need for her health care and well-being over the balance of her life.”

At Eisen Law, estate law is all we do. Our trusted and compassionate estate lawyers will guide you through the emotional and often stressful decisions around power of attorney matters and will ensure your loved one’s interests are protected. Should a dispute arise over a power of attorney, we can represent you throughout the litigation process. Call us at 416-591-9997 or contact us online.



Return to Blog