When a loved one’s health deteriorates, it is essential to have a plan in place through a Power of Attorney or a Guardianship Order. Problems can arise, however, if the ones putting this plan in place do not get along. Such was the situation in various proceedings relating to the Tanti/Joseph family.
Man’s Son Challenged Father’s Capacity to Marry Young Wife
In 2019, an elderly man with dementia, Mr. Tanti, married his much younger live-in companion, Ms. Joseph. That same year, Mr. Tanti’s son brought an application challenging the validity of the marriage on the grounds of incapacity. Both the trial and appeal of that hearing found otherwise and declared the marriage valid.
In September 2019, a new hearing was held to determine the capacity of and potential guardianship for Mr. Tanti. At trial, only Mr. Tanti’s son was present. Ms. Joseph had received a Notice of Appearance but left the courthouse before the matter was heard.
Son Granted Guardianship Over Father After Alleging Wife Took Money
At the guardianship hearing, Mr. Tanti’s son alleged that $600,000 of Mr. Tanti’s money had gone missing. He also stated that Ms. Joseph had failed to make arrangements for Mr. Tanti’s care before leaving for Trinidad for two weeks. He suggested that Ms. Joseph had absconded with the money to Trinidad. During this time, Mr. Tanti’s son had to bring Mr. Tanti to his own home.
A Guardianship Order was made without input from Ms. Joseph or her counsel. As Mr. Tanti was deemed incapable of managing his own personal care or property, his son was appointed sole guardian of Mr. Tanti’s property and person. Ms. Joseph subsequently applied to set the Guardianship Order aside.
Wife Applied to Set Aside Guardianship
The Ontario Superior Court of Justice was required to determine if the Guardianship Order should be set aside and, if so, what should replace it. Ms. Joseph submitted that the order was “based on false, misleading, and incomplete information”.
Ms. Joseph argued that if the Guardianship Order was set aside, a previous Power of Attorney granted from Mr. Tanti to Ms. Joseph should take its place. Ms. Joseph’s counsel filed evidence of a Power of Attorney for Personal Care that Mr. Tanti had granted Ms. Joseph in October 2017. She also submitted a Continuing Power of Attorney for Property from July 2019.
Conflicting Powers of Attorney Granted to Son & Wife
Mr. Tanti’s son stated that if the Guardianship Order was set aside, it would create a vacuum in Mr. Tanti’s care. While there were alleged Powers of Attorney granted from Mr. Tanti to Ms. Joseph, there had been no judicial determination of their validity. He also stated that there was the possibility of two conflicting Powers of Attorney being operative. This was because Mr. Tanti had granted his son a Power of Attorney for Personal Care after signing one in favour of Ms. Joseph.
Counsel for the Office of the Public Guardian and Trustee also appeared. Although the Public Guardian and Trustee did not make any arguments, it submitted section 22 of the Substitute Decisions Act for consideration. Section 22 makes clear the preference for the use of Powers of Attorney over Guardianship Orders, which are more restrictive.
Man’s Counsel Raised Concern With Lack of Planning for Client’s Care
Mr. Tanti’s counsel was appointed for him under the Substitute Decisions Act. His counsel took no position but submitted the following concerns:
- The evidence of Mr. Tanti’s incapacity was overwhelming;
- There was no detailed evidence about Ms. Joseph’s plan for where she and Mr. Tanti would live together, the suitability of their residence to address Mr. Tanti’s medical needs, and how Ms. Joseph would attend to Mr. Tanti’s medical services, such as his dialysis;
- The competing Powers of Attorney for Personal Care (one in favour of Ms. Joseph and one in favour of Mr. Tanti’s son) contained very different end-of-life provisions for Mr. Tanti, which his counsel noted was “odd and very significant for Mr. Tanti”;
- The Court had an insufficient evidentiary foundation to determine the validity of any of the various Powers of Attorney in existence;
- As there was no chance that Mr. Tanti’s son and Ms. Joseph could cooperate, they could not split the responsibilities for Mr. Tanti’s personal care and property.
Court Held Guardianship Order Must be Set Aside Due to Procedural Issues, False Evidence by Son
After assessing the positions of all parties, the Ontario Superior Court of Justice decided that the Guardianship Order should be set aside. It was clear that the Guardianship Order was intended to be temporary to gain control of Mr. Tanti’s finances and to make sure he was taken care of in his wife’s absence. It was not intended to be in place for as long as it had been, which at the time of the hearing had been three years.
The Court also found that the Guardianship Order should not have been granted in the absence of Ms. Joseph and without the benefit of any materials filed on her behalf. The Court stated that dealing with issues such as these in an ex parte manner (with one party only) “is not in the interests of justice.” The evidence determined that Ms. Joseph had no intention of abandoning her objection to the guardianship application by leaving the courthouse and likely would not have left if she and her lawyer thought an order was going to be made.
Additionally, Mr. Tanti’s son admitted under cross-examination that the allegation that $600,000 had been potentially stolen by Ms. Joseph was untrue, and Ms. Joseph had no intention of abandoning Mr. Tanti. These facts only came to light in this hearing and were not heard when the Guardianship Order was made.
Guardianship Stayed for Parties to Plan for Man’s Care
Although the Court ruled that the Guardianship Order must be set aside, there was no alternative in place, and there was conflict between the two Powers of Attorney. As a result, the order could not immediately be set aside. Instead, the Court granted a stay of 90 days to allow time for the parties to put a plan in place for Mr. Tanti’s care.
Eisen Law in Toronto Provides Experienced Representation in Guardianship Disputes
The skilled guardianship lawyers at Eisen Law have extensive experience navigating the complicated processes under the Substitute Decisions Act. We also understand how emotionally charged guardianship disputes can become and work to find the best possible resolution that ensures your loved one’s interests are protected. Our firm proudly helps clients across Ontario in a variety of guardianship and estate litigation matters, including consent and capacity issues and powers of attorney. To schedule a confidential consultation, please call us at 416-591-9997 or reach out online.