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Kimberly A. Whaley
Whaley Estate Litigation
About Whaley Estate Litigation
2011 is a landmark year for Whaley Estate Litigation as April marks our 5th anniversary; and we have much to celebrate, including our new website and blog as well as this, the release of our first monthly newsletter.
Whaley Estate Litigation is led by founder, and principal, Kimberly A. Whaley, who is designated as a Certified Specialist in Estates and Trusts Law by the Law Society of Upper Canada, and designated trust and estate practitioner by STEP (worldwide). Kimberly has been consistently peer rated and listed by The Best Lawyers in Canada in the specialty of Estates and Trusts and was chosen by Lawday Leading Lawyers as one of the top 60 leading lawyers in Estates and Trusts in Canada. Kimberly restricts her practice to the litigation and mediation of estates, trusts and related proceedings.
Our Associates, Ameena Sultan and Amy Cull, practice exclusively in the area of Estate, Trust, Capacity, Fiduciary, and Power of Attorney Litigation.
Mark Handelman is our Firm Counsel. Mark holds an MHSc in bioethics from the University of Toronto Joint Centre for Bioethics. He was a member of the corporate ethics committees of both William Osler and Humber River Hospitals and wrote the first versions of the information brochure, "A Guide to Substitute Decision-Making" for both hospitals. His articles on mental health law and ethics, substitute decision-making and the end of life process have been published in various journals. Mark is a leading practitioner in "end of life decision making".
Together with our experienced staff of estate, and law clerks as well as administrative assistants, we have enjoyed much success and recognition, and we are pleased to deliver effective services to our clients and the profession in the estate litigation context.
We appreciate your continued support and look forward to hearing from you.
Sibling Rivalry and Competing Powers of Attorney: "But Mom Likes Me Best..."
By Kimberly A. Whaley
As our population ages and our older adults become more vulnerable, we are faced with this ever increasing and developing social trend - litigation involving competing Powers of Attorney, and attendant to such disputes, competing guardianship and capacity proceedings.
The Substitute Decisions Act, 1992, SO 1992, c.30, (the "SDA"), as amended, is in part, designed to protect the vulnerable, provide a framework for the attorney as a fiduciary and to ensure a standard of accountability - unfortunately the statue is not coping well with the impact of the litigation now before our Courts.
This litigation involves primarily competing Power of Attorney documents and generally speaking in circumstances where there have been multiple subsequent Power of Attorney documents granted as the older adult advances in age when perhaps they are vulnerable, dependant, and susceptible to influence. This litigation is emotional for the parties involved; costly; and evinces bad behaviour amongst siblings of the elderly parent for a variety of reasons oft with common themes of alienation, kidnapping and other forms of abuse.
Nguyen-Crawford v. Nguyen, 2010 ONSC 6836, a decision of the Ontario Superior Court of Justice, with Justice Price presiding, on December 10, 2010, who gave reasons on the motion which included issues for determination as to whether Mrs. Nguyen had capacity to grant Powers of Attorney; whether the Powers of Attorney granted were valid; whether there ought to be an appointment of a guardian for Mrs. Nguyen; and whether or not the attorney acting under a Power of Attorney ought to be compelled to pass her accounts. This is an increasingly common motion brought often by siblings of a parent who have differing ideas as to the management of their elderly parents property and personal care.
Nguyen-Crawford v. Nguyen is a classic example of sibling rivalry - a sibling dispute as amongst five children of a 79 year old with all the usual hallmarks of concepts of abuse, control, alienation, influence, and lack of accountability. This case is not unusual, nor much different than any client case that many in our practice area face on a weekly basis. It is illustrative of the struggles that families face; the costs often incurred in attempts to resolve the issues; and the lack of the ability of children to drop issues they may have with one another, and simply focus on the older, often vulnerable parent.
- Tuyet Ngoc Nguyen, the subject matter of the motion before the Ontario Superior Court of Justice, is the 79 year old mother of five children.
- In 1998, the youngest of the five children, Ms. Nguyen-Crawford, secured Powers of Attorney from their mother naming her as attorney for personal care and for property.
- The respondent siblings, who are the mother's other four children, make allegations that for a period of in or about 10 years, during which time the mother was competent to manage her own personal care and property, Ms. Nguyen-Crawford and her husband depleted the mother's assets by in or about $200,000.00.
- In 2008, mother suffered a stroke.
- In 2009, the respondent siblings secured new Powers of Attorney from the mother for both personal care and property.
- Ms. Nguyen-Crawford, to prevent her siblings from exercising decision making authority under the 2009 Powers of Attorney, brought an application and motion before the Court for a declaration that the 2009 Powers of Attorney were invalid and that the 1998 Powers of Attorney, which had named her as attorney, continued to be valid and operative.
- At the time the motion was heard in June, 2010, the respondent siblings conceded that the 2009 Powers of Attorney were invalid because their mother was mentally incapacitated by her stroke when she signed them. The respondent siblings seek, in their own application, a declaration that the 1998 Powers of Attorney are also invalid on the ground that Ms. Nguyen-Crawford, with whom the mother lived at the time and was dependant on, exercised undue influence over her and was the only person who translated the Power of Attorney documents and the lawyer's advice concerning them to her.
- The respondent siblings also made application for an Order appointing them as their mother's guardians for property and of the person in place of Ms. Nguyen-Crawford.
- The respondent siblings also sought an Order of the Court requiring Ms. Nguyen-Crawford to account for the funds which they allege she or her husband spent and they allege on their mother's behalf before mother suffered her stroke.
- The mother is of Vietnamese descent and speaks very little English.
- The mother was at the time legally separated from her husband, but not divorced.
- At issue in the accounting is the matrimonial home which their mother and father had owned during their marriage which was sold and the net proceeds of sale invested in the stock market. The investments were alleged to be worthless at the time the application was heard, and the respondent siblings blame Ms. Nugent-Crawford for the losses sustained.
- The mother suffered a stroke in 2008 and was in the hospital for in or about four months. The stroke impaired her cognitive ability and upon discharge from hospital, it was decided by one of the respondent siblings that the mother should reside with another sibling as opposed to Ms. Nguyen-Crawford, with whom the mother lived before her stroke.
- The judgment speaks to Ms. Nguyen-Crawford complaining by the end of February 2009 that her siblings were denying her access to their mother (a form of alienation). The message emanating from her siblings was that it was mother's choice to have no relationship with her.
- The Community Care Access Centre was involved at one point with a view to resolving the siblings dispute over who should be making decisions on behalf of their mother.
- There were allegedly capacity assessments and medical records supporting that their mother was not capable of making her own decisions, was susceptible to influence, had short term memory deficit, and other cognitive ability and memory impairment.
- In or about June 2009, Ms. Nguyen-Crawford's counsel wrote to the lawyer who had prepared the 2009 Powers of Attorney demanding the following:
a) That the respondent siblings acknowledge the invalidity of the 2009 Powers of Attorney and give effect to the 1998 Powers of Attorney, which named Ms. Nguyen-Crawford as attorney;
b) That Ms. Nguyen-Crawford be allowed to participate fully in Mother's care and support her financially, without her siblings' intervention and be solely responsible for the selection, dealings with, and oversight of Mother's caregivers; and
c) That Ms. Nguyen-Crawford and her family have full and unsupervised access to Mother in person and by phone.
- The respondent siblings did not comply with the demands of Ms. Nguyen-Crawford.
- Despite an Order of the Honourable Justice Hourigan, which ordered the respondent siblings to take all reasonable steps to foster and facilitate regular personal contact between Ms. Nguyen-Crawford and their mother. They failed to do so, and thereafter Ms. Nguyen-Crawford met with her mother without the knowledge of her siblings and videotaped the meetings. Certain excerpts of the conversation appear in the judgment.
- Court ordered capacity assessments found their mother incapable of managing her property and personal care, frail, vulnerable, situational dependant and influenced by the power of suggestion.
- It does not appear that a retrospective capacity assessment was conducted.
- In March 2010, Justice Quigley ordered that the mother was incapable of managing her property and personal care and that the 2009 Powers of Attorney were invalid and of no force or effect (void ab initio).
- Evidence was before the Court respecting their mother's iTRADE account. Ms. Nguyen-Crawford's husband was examined as a non-party, justifying that he was responsible for all of the trades on mother's iTRADE account.
- There were allegations of forgery.
- The responding siblings relied in their application to have the 1998 Powers of Attorney declared invalid, on the fact that the lawyer who advised their mother did not have the Powers of Attorney independently translated to the mother, and therefore the Powers of Attorney were invalid. It was not disputed that the only translation that their mother was given by Ms. Nguyen-Crawford.
- Mutual allegations issued of undue influence was exerted by both Ms. Nguyen-Crawford in respect of the 2009 Powers of Attorney; and, in turn, by the respondent siblings with respect to the 1998 Powers of Attorney.
- The respondent siblings relied on the doctrine of "non est factum". The onus of proof of "non est factum" is on the plaintiffs to discharge. The Court agreed that the siblings must establish that their mother thought that the document she was signing in 1998 was something other than Powers of Attorney, for which the Court ruled that this burden had been satisfied by the respondent siblings' evidence. Their mother did not speak English, and the only translation she was given of the documents in question was provided by Ms. Nguyen-Crawford on whom the documents conferred extensive powers which she was in a position to, and the evidence did show she exercised for her own benefit.
- There was also an allegation against Ms. Nguyen-Crawford of misappropriation of mother's money for her own personal use. There were allegations as between Ms. Nguyen-Crawford and the responding siblings of failure to act in the mother's "best interests" with respect to her personal care.
- The Court went into great detail in relaying the facts and extensive evidence as well as its analysis of the evidence in conjunction with the governing legislation and its provisions for the granting and revoking of power of attorney documents and the test for capacity.
The Court found that the 1998 Powers of Attorney were not valid. The Court found that the detailed guardianship plan for the person and management plan for property presented by the respondent siblings, were plans in their mother's best interest. The plans were premised on the respondent siblings' assurances that they would foster and encourage mother's contact with Mr. Nguyen-Crawford.
With respect to the duty to pass accounts, the Court found that there must be clear and compelling evidence of mismanagement, theft or financial abuse to require such a passing. The Court concluded that the evidence, while establishing suspicious circumstances of undue influence, did not amount to clear and cogent evidence of fraud and found that it was not appropriate to require Ms. Nguyen-Crawford to pass her accounts. Ms. Nguyen was removed as their mother's attorney. The respondent siblings were appointed as guardians of the property and the person for their mother. The Court required an amended guardianship plan to be filed, including a schedule for regular personal contact between Ms. Nguyen-Crawford and their mother, and invited written submissions as to costs, if the parties could not agree on costs.
The net result of this: no doubt, a very expensive power struggle, yes, in part to protect and prevent an alleged abuse, but, laden with sibling rivalry and animosity.
The question of how could our legislation better deal with these situations where there are multiple subsequent Powers of Attorney granted later in life continues to be a struggle for our Courts, legislators and litigants alike. It is a worldwide struggle-balancing autonomy with protection and accountability from substitute decision makers where substitute decision making is required.
Many jurisdictions are working on legislation - have amended and tried new legislation - have failed and continue to face the struggle of how to prevent abuse, provide litigants with a forum of resolution and protect the older adult effectively with proportionality.
* All information concerning this case was obtained from the judgement which can be referenced here on CanLII
This newsletter is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This newsletter is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
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Kimberly A. Whaley
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