In the past, I have blogged and spoken about the duties of an attorney (substitute decision maker) acting under a power of attorney.
I am consulted on a regular basis by family members of incapable persons who have concerns or complaints concerning the failure of an attorney to keep them in the loop as to what the attorney is doing with respect to the incapable person’s property. Quite often, the persons consulting me are being denied by the attorney the right to visit the incapable person even when they are close relatives or friends of the incapable person.
The Substitute Decisions Act of Ontario (the “SDA”) sets out the duties of a guardian (which duties also apply to attorneys acting under a power of attorney) with respect to keeping family and supportive friends involved in the incapable person’s life.
Section 32 of the SDA which deals with the duties of guardians of property and attorneys for management of property provides in part as follows:
Family and friends
(4) The guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person. 1992, c. 30, s. 32 (4).
(5) The guardian shall consult from time to time with,
(a) supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and
(b) the persons from whom the incapable person receives personal care. 1992, c. 30, s. 32 (5).
Similar provisions for guardians of the person and attorneys for personal care can be found in section 66 of the SDA.
A recent decision of the Ontario Superior Court of Justice, Gironda v Gironda deals with an attorney who failed to appreciate his duties and responsibilities in this regard.
The Gironda case was a contest between siblings over the management of property and care for their elderly mother who was 92 years of age. Vito one of the sons was appointed as attorney for property and personal care by his mother and was also the beneficiary of her will and some property transfers.
The case is interesting as it deals with a will challenge while the testator was still alive. The Court held that the will made in 2005 was valid but that property transfers made in 2008 by the mother to Vito and specifically the transfer of her home were invalid due to lack of capacity to make a gift.
In this case, Vito persistently sought to prevent his brothers from visiting their mother. While she was in the hospital, Vito used his “veto” as attorney to issue instructions to bar his brothers from seeing her. While she was living at home, he changed the locks and the telephone numbers in an effort to limit his mother’s contact with his brothers.
In addition, the judge found that Vito also demonstrated a “disturbing willingness to treat his mother’s money as his own”. For example, Vito transferred $ 175,000 to himself from his mother’s account after his mother was hospitalized “to prevent his brothers from getting their hands on the funds.”
With respect to his dealings with other professionals that were looking after his mother such as caregivers and nurses, Vito made angry threats against them if he was unhappy with the level of care. This included calling them obscene names and threatening to “use their face to sweep the floor”. He also threatened the nursing home security by saying “if my mother is neglected I will shoot you in the face” and “if anything happens to my mother, I’m coming back for you…”.
While the judge wrote that Vito’s concerns for his mother’s well-being were heartfelt, the manner in which he advanced concerns did have a tendency to intimidate and alienate the staff of the nursing home.
The judge appointed two of Vito’s brothers to be the guardians of their mother and Vito was disqualified to act as attorney. The property transfers were set aside but the will was held to be valid. Vito was ordered to pay occupation rent while living in his mother’s house ( which house under the terms of the Will was ultimately left to him).
The Gironda decision is a must-read as an estate litigation primer.