Whaley Estate Litigation Newsletter

Whaley Estate Litigation Newsletter No.3  June 2011




We are pleased to publish this the third edition of our newsletter. In this edition we feature an article on Substitute Decisions Act Proceedings and Guardianships with Mark Handelman, Firm Counsel, writing on the Power of Attorney for Personal Care and Amy Cull, Associate, providing reviews of three recent Substitute Decisions Act cases.  


We welcome your feedback, comments and contributions. Please direct any inquiries to:  newsletter@whaleyestatelitigation.com



Kimberly A. Whaley
Whaley Estate Litigation

News at WEL


Ameena Sultan is now back at the office after having been on maternity leave. Please note the change in Ameena's direct dial telephone number. She can now be contacted at 416-355-3258. 


Ameena Sultan will be returning to her second year on the Ontario Bar Association Trusts and Estates Executive.


Kimberly A. WhaleyKimberly A. Whaley will be returning to the Canadian Bar Association Elder Law Executive as Program Coordinator. 


Kimberly will also be returning to the Society of Trust and Estate Practitioners - Toronto (STEP) as Program Chair together with David Stevens of Gowlings LLP. 

Substitute Decisions Act Proceedings and Guardianships


Guardianship proceedings arising out of contested Power of Attorney litigation or otherwise initiated where no Power of Attorney exists is on the rise. This type of litigation is very emotional and is all too often a fight over control, rather than friends and family working together to assist a cognitively challenged individual with their affairs, through assisted or substitute decision making.  

Our growing body of case law and our aging population suggests that this sort of litigation will continue to grow.  The courts in Ontario continue to send a message that the purpose of this type of litigation must be focused on the 'best interests' of the person and the fiduciary obligations of those who act as substitute decision makers.

Mark Handelman writes below on the Power of Attorney for Personal Care followed by reviews of three recent Substitute Decisions Act cases by Amy Cull. 


The Power of Attorney for Personal Care:


A Power of Attorney for Personal Care may be the most important document you put in front of your client. 


The decisions your client entrusts to Attorneys are crucial to his or her dignity, liberty, security and well being at a time when the client may not be able to assert his or her own rights.  A Power of Attorney for Personal Care authorizes the named Attorney or Attorneys to make decisions about admission to a care facility, about treatment of chronic or acute medical conditions and about whether or not the Donor should be physically restrained for his or her protection or the protection of others.  It may also contain instructions about whether or not to begin, discontinue or not provide treatments that will continue life in the end stages of terminal illness.


However, too frequently, the Power of Attorney for Personal Care is an afterthought document, added to the will and Power of Attorney for Property package without serious discussion between lawyer and client between client and proposed Attorneys.


This paper provides an overview of Powers of Attorney for Personal Care and addresses some of their inherent pitfalls.


Formal Validity


Powers of Attorney for Personal Care ("POA") are authorized by sections 41 et seq. of The Substitute Decisions Act, 1992, S.O. 1992, c. 30 [1] (the "SDA"). The document authorizes the person or persons named as attorneys "to make, on the grantor's behalf, decisions concerning the grantor's personal care" [s. 41(1)].  When more than one attorney is appointed, they must act jointly unless the POA specifies otherwise (s. 41(4), SDA).  Other subsections authorize appointment of The Public Guardian and Trustee as attorney, prohibit appointment of health care providers for compensation as attorneys unless they are the spouse or a relative of the grantor and authorize instructions in the POA that are consistent with the SDA.


While a POA need not be in any particular form, it must be executed in the presence of two witnesses, who also sign the document.  The grantor must be at least 16 years of age at the time of execution (SDA s. 43) and the Attorneys must be at least 16 at the time they exercise a power of decision on the authority of the POA (s. 44).  It is therefore acceptable to appoint as Attorneys persons not yet 16, recognizing that they have no authority before then.


Witnesses to the execution of a POA must be at least 18 years old.  They may not be the grantor's spouse or partner, a child of the grantor or a person to whom the grantor stands in loco parentis, or a person whose property is under guardianship (ss. 48 and 10 SDA).  However, s. 48 also authorizes a court application to declare the POA effective in breach one of those provisions "if the court is satisfied that it is in the grantor's interests to do so."

Capacity to Execute a POA


47. (1) A person is capable of giving a power of attorney for personal care if the person,

(a) has the ability to understand whether the proposed attorney has a genuine concern for the person's welfare; and

(b) appreciates that the person may need to have the proposed attorney make decisions for the person.


(2) A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care.


(3) A person is capable of revoking a power of attorney for personal care if he or she is capable of giving one.


(4) Instructions contained in a power of attorney for personal care with respect to a decision the attorney is authorized to make are valid if, at the time the power of attorney was executed, the grantor had the capacity to make the decision.


There are pitfalls here: the POA may be effective to authorize the named attorney to make decisions for the grantor, but some of the instructions in the document may not be valid if the grantor, at the time of executing it was incapable of giving those instructions.  So, there are at least two tests for capacity that have to be considered.


While capacity is always presumed, it is the lawyer's obligation to be on the alert for persons who may not be capable of executing the document or of giving the instructions contained in it.  Capacity is always issue and time specific: a person may be capable at some times and incapable at others, or capable of some decisions but not others.  (This also becomes important to the attorneys and health care providers involved in the grantor's personal care, treatment and admission decisions because the POA may be effective for some decisions but not others-see below.)


The test for capacity to grant a POA is a lesser or easier test than the tests for capacity to execute a Power of Attorney for Property, to execute a will, or to make personal care or treatment decisions.  This was intentional on the part of the legislature: a person incapable of making personal care or treatment decisions may nonetheless be capable of deciding who should make those decisions.  It is part of the scheme set out in the SDA and The Health Care Consent Act  ("HCCA") for respecting an individual's dignity and autonomy (as a health practitioner would put it), rights and liberties (as a lawyer would put it). 


When the POA expresses wishes about personal care, treatment, admission to a care facility or a personal assistance service, it is incumbent upon the lawyer preparing it to ensure his or her client has the capacity, at the time of executing the POA, to make those decisions.  It is therefore incumbent upon the practitioner to know those differing tests for capacity as well as the test for capacity to execute the document itself.  The definition of capacity to make personal care decisions is in the SDA.  The definition of capacity to make treatment, admission and personal assistance decisions is in the HCCA:


SDA s. 45 A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.


HCCA s. 4(1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.


Under HCCA, a health practitioner proposing the treatment, admission or personal assistance service, as the case may be, makes the finding of incapacity.  The incapable patient has the right to be advised of the finding and the right to challenge it by application to The Consent and Capacity Board.  The treatment, admission or personal assistance service may not be implemented until the Board confirms the finding.


There is virtually no case law assisting practitioners with the definition of capacity to execute a POA or the definition of capacity to make personal care decisions.   On the other hand, there are about 500 applications annually to The Consent and Capacity Board to review findings of incapacity to make treatment and admission to care facility decisions, although most of the applications regarding treatment capacity deal with psychiatric inpatients. [2]  


While both SDA and HCCA contain provisions for reviewing findings of incapacity for personal care or to manage property, for reviewing findings of incapacity to make treatment, admission and personal assistance decisions by way of application to the Consent and Capacity Board, there are no such provisions to review a determination that a person is incapable to execute a POA.  Consequently, challenges to the validity of a POA based upon the Grantor's lack of capacity go to Superior Court. 


If you have any doubt about your client's capacity to execute the POA or to include effective instructions, conditions or restrictions in it, it is wise to have an expert health practitioner assess the grantor's capacity, or to retain a lawyer with expertise in capacity matters to take instructions for Powers of Attorney, prepare them and attend when they are signed.  (When I do this for clients of questionable capacity, I always videotape the interviews-with client consent of course.)


Whom to Appoint


First and foremost, make sure the Attorney(s) will in fact be available to make treatment, admission and personal care decisions.  While health practitioners do not require consent for emergency treatment, there are frequent decisions that have to be made on behalf of incapable persons when they enter the health care system. 


Grantors frequently appoint different Attorneys for property than for personal care on the theory, one can watch the money and the other can ensure my care.  This decision all depends on the family dynamic.


In my opinion, the most important aspect of choosing an Attorney for personal care is frequently overlooked.  People simply don't express their values and beliefs about end of life instructions to their family with enough frequency to facilitate making those decisions.  By way of example only, were I a Jehovah's Witness, I would want to ensure my Attorney was prepared to allow me to die if the only way of saving my life was a blood transfusion. 


Conversely, since I have no religious beliefs precluding transfusions, why would I appoint as Attorney someone who does?  That person would either refuse to consent to my blood transfusion or perhaps be left in considerable distress with having to consent to a medical procedure he or she does not believe in.


Most people take the position that they don't want to spend their last years alive "as a vegetable."  They should not only make sure their Attorneys are willing to "pull the plug," but also empower their Attorneys to do so.  To both ends, there must be discussions between Grantor and Attorneys in which the Grantor sets out his or her values and beliefs at least in general terms for the benefit of those left to make what can be very difficult emotional decisions.


"Special Provisions, Conditions, Restrictions and Instructions and Instructions in a POA"


Section 50 of the SDA governs special provisions that may be inserted into a POA which authorize the use of force, detention and/or restraint against the Grantor to assess his or her capacity, or to place the Grantor for care or treatment.  It also governs any provision in a POA by which the Grantor waives the right to apply under the HCCA or SDA to review findings of incapacity. 


In summary, s. 50 stipulates that no such provisions are effective unless an Assessor assessed the Grantor's capacity at the time the POA was executed or within 30 days thereafter.  The section also requires that the grantor sign a statement indicating that he or she understood the effect of the provision.  Revoking such a provision requires the same process.


In any event, note that there is a common law duty of caregivers to restrain a person.  Section 7 HCCA specifically retains this duty:


This Act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others. 


Other conditions, restrictions and instructions in a POA do not require any special process to be effective.  They usually cover the Grantor's religious beliefs if they are relevant to treatment decisions, or are intended to reflect the Grantor's values, beliefs and lifestyle preferences.  Common instructions are of the "no heroic measures" or, "don't put me in a nursing home" variety.  These are covered as "Advance Directives" in the next section of this paper.


Advance Directives in Powers of Attorney


A POA with treatment directions in it is not the Grantor's consent to treatment in accordance with the directions contained.  Rather, those directions are just that: directions to the Attorneys as to whether to give or refuse consent to a specific care plan under the SDA or to a specific treatment or plan of treatment under the HCCA. [3]


The advance directive is also important to the doctors, nurses and other health practitioners treating the Grantor when he or she is incapable of giving or refusing consent to the treatment.  Their obligation goes beyond simply identifying the correct substitute decision-maker and obtaining consent to treatment.  They are obliged to ensure consent accords to the principles for giving or refusing consent set out in HCCA s. 21(1),


A person who gives or refuses consent to a treatment on an incapable person's behalf shall do so in accordance with the following principles:


1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.


2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person's best interests.


"Best interests" is defined, in detail in HCCA s. 20(2).

So, an advance directive in a POA that was made while the grantor was capable with respect to that treatment and that applies to the Grantor's circumstances is supposed to govern consent to treatment.  However, the governing wish is the most recent capable and applicable wish.  Consider the provisions of HCCA s. 5:


(1) A person may, while capable, express wishes with respect to treatment, admission to a care facility or a personal assistance service. 


(2) Wishes may be expressed in a power of attorney, in a form prescribed by the regulations, in any other written form, orally or in any other manner. 


(3) Later wishes expressed while capable prevail over earlier wishes. 


Note that while wishes may be expressed in a POA, they may be expressed orally as well and that later wishes prevail over earlier wishes.  In other words, your client may have a valid POA containing advance directives, but he or she may have subsequently orally revoked the advance directive without affecting the validity of the appointment of Attorneys.


Attorneys for personal care are in no better position than other substitute decision-makers when challenged by a health practitioner as to the consent they give or refuse.  That is, they are not entitled to say for example, "You cannot challenge our treatment decisions because we are the named Attorneys." [4]


Advance directives require some specificity if they are to be enforced.  They also require an examination of the context in which they were made, according to the Ontario Court of Appeal in Conway v. Jacques, 2002 CanLII 41558 (ON C.A.).  At paragraph 31 of the judgment for the Court, Justice Sharpe wrote,


[31] At the first stage, the substitute decision-maker must act in accordance with a wish expressed while capable that is applicable to the circumstances.  However, I agree with the appeal judge that prior capable wishes are not to be applied mechanically or literally without regard to relevant changes in circumstances.  Even wishes expressed in categorical or absolute terms must be interpreted in light of the circumstances prevailing at the time the wish was expressed.  As Robins J.A. held in Fleming at p. 94:

In my view, no objection can be taken to procedural requirements designed to determine more accurately the intended effect or scope of an incompetent patient's prior competent wishes or instructions.  As the Act now stands, the substitute consent-giver's decision must be governed by wishes which may range from an isolated or casual statement of refusal to reliable and informed instructions based on the patient's knowledge of the effect of the drug on him or her.  Furthermore, there may be questions as to the clarity or currency of the wishes, their applicability to the patient's present circumstances, and whether they have been revoked or revised by subsequent wishes or a subsequently accepted treatment program.


The reference is to Fleming v. Reid, 1991 CanLii 2728 (ON C.A.).  While both cases deal with the previously expressed wishes of psychiatric patients regarding treatment with antipsychotic drugs, the principles enunciated apply to treatments generally and to wishes expressed about them.


When a client instructs you to insert a provision in the nature of "no heroic measures," or, "I don't ever want to be in a nursing home," take care.  And take detailed notes because you may have to explain the provision at a Consent and Capacity Board Hearing, or to the Attorneys.


What did the Grantor mean by, "no heroic measures?"  What he or she may consider a heroic measure today may some time down the road be routine or nearly routine treatment: It wasn't that long ago that a kidney transplant or a coronary bypass was a heroic measure. 


And, no one ever wants to go to a nursing home.  But if you insert that provision into the POA, what happens to the moderately healthy but incapable Grantor whose Attorneys are faced with that provision but the alternatives when the decision has to be made are worse? 


That was the situation in M. F., Re, 2003 CanLII 14908 (ON C.C.B.), an application to determine whether a previously expressed wish applied to Mrs. F.'s current circumstances:


Mr. C.K. was Ms M.F.'s substitute decision-maker by virtue of a Power of Attorney for personal care she executed in January 2001.  Mr. Summerville prepared it and witnessed it.  At the time it was executed, Mr. Somerville , Mr. C.K. and Ms M.F. discussed her plans for care.  Ms M.F. said she wanted to stay in her home.  That was the capable wish that was the cause of this Application.


In his evidence, Mr. Summerville said he did not take Ms M.F. to mean that she wanted to stay in her home no matter what happened. The conversation did not go into great detail and Mr. Summerville's recollection was not precise given the passage of time, but the wish as expressed was not unconditional.  Ms M.F. recognized the prospect that she might need care.  Mr. C.K. said the same thing about his grandmother's comments during that interview.  He thought that, had it been put to Ms M.F. that she would find herself in her current situation, she would want it remedied.


The Board's analysis went like this:


Generally, there are three types of wishes one might express regarding a treatment or care decision.  The first arises out of deeply held beliefs, such as the wish of a Jehovah's witness not to receive a blood transfusion.  The second responds to an imminent extenuating circumstance, such as major and risky surgery.  The third category is a general expression of sentiment in contemplation of an uncertain future.


 In the first category, the beliefs underlying the wish are likely to be concrete and therefore precise.  There is likely certainty to the wish and its applicability to the circumstances however far in advance it was made: "Under no circumstances give me a blood transfusion."


In the second category, the person expressing the wish is anticipating what the near future holds.  In the case of major surgery, a person will have the benefit of medical advice including an assessment of the risks and range of outcomes.  The time frames are constrained. Considerations other than the risks and results of the procedure, such as family and finances, are predictable in the short term, before the vagaries of life have much time to interfere in plans.  The instruction given to a substitute decision-maker is based upon that current information.  Such a wish is therefore likely to be made with certainty and with realistic application to the person's circumstances. 


In the third category, the person expressing the wish anticipates something that, if it does transpire, will take place in the indeterminate future.  Surrounding circumstances may change from the time the wish is expressed to the time it might be applicable.  Life can be unpredictable.


In the first two cases, the wish and the circumstances to which it applies are concrete.  In the third situation, fate might foil the best laid plans.  The legislation qualifies the obligation of a substitute decision-maker to give effect to advance directives by requiring that the wish be applicable to the circumstances.  The wish needs a framework of relevance to the time it might be implemented.


It would be impossible for someone sitting in a lawyer's office about to execute a Power of Attorney for personal care to anticipate every contingency of future needs.  I think it likely that many expressions, many wishes made at that time, are more intended as philosophical guidelines for the attorney than hard and fast directions to be followed no matter what. Consequently, I am skeptical about the extent to which comments of a general nature addressing unforeseeable contingencies are intended by the legislation to be wishes mandated for slavish adherence.  Such general outlines of preference may, as life unfolds, not be applicable to the circumstances.


Did Ms M.F. make a general statement intended to guide a substitute decision-maker when the unforeseen or the unmentionable occurs or did she express a wish in the sense the legislation uses the word?  Both people who testified as observers to Ms M.F.'s capable wish viewed it as conditional.  Mr. Summerville remembered Ms M.F. expressing a concern about the level of care she might need.  Mr. C.K. agreed.  There was no evidence Ms M.F. had a philosophical or concrete objection to a care facility.  Rather, it seemed she was expressing a general preference to remain in her own home for as long as possible.


The evidence did not show that when she talked about her preferences Ms M.F. anticipated the serious decline in her physical and mental health that transpired.  Mr. C.K. thought that his grandmother, were she able to see into the future, would not have wanted to be left at home in her current circumstances.


As at the Hearing, Ms M.F.'s circumstances included the need for 24-hour supervision, help with her activities of daily living including taking medication, general hygiene, and meals.  She was left alone for long periods of time while her son went out without making provision for Ms M.F.'s meals or bodily functions.  Her family could not manage the level of care and supervision Ms M.F. needed and she could not afford private caregivers around the clock. 


Ms M.F.'s situation represented an affront to her personal dignity as a human being.  Being left alone for hours after an incident of incontinence and being physically unable to respond to that immediate need is but a single example of her situation. 


For these reasons, I held that Ms M.F. had not made a "wish applicable to the circumstances."  What she said was too vague and her circumstances too likely not within what she was contemplating when she said what she did to be applicable. 


Alternately, if I held the wish applicable to her circumstances, I would have interpreted Ms M.F.'s words to mean, "Let me stay in my own home as long as I am able to manage there with whatever help is available."  Mr. C.K. already did that and phase two of the wish now must be implemented.


In the year and a half since Ms M.F.'s rapid decline began, it was clear to me that Mr. C.K. did everything possible to maintain Ms M.F. in her home: he had already respected the general preferences expressed by his grandmother. 


Were I wrong in holding the wish not to be applicable to Ms M.F.'s circumstances, I would have authorized Mr. C.K. to depart from it. To paraphrase the legislation, I was satisfied that Ms M.F., if capable, would probably give consent to admission because the likely result of the admission is significantly better than she would have anticipated in comparable circumstances at the time the wish was expressed.


When is a POA Effective?


Unlike Powers of Attorney for Property, a POA does not grant "continuing" authority: it is only effective in respect of the specific decisions for which the grantor has been found incapable:


49. (1) A provision in a power of attorney for personal care that confers authority to make a decision concerning the grantor's personal care is effective to authorize the attorney to make the decision if,

(a) the Health Care Consent Act, 1996 applies to the decision and that Act authorizes the attorney to make the decision; or

(b) the Health Care Consent Act, 1996 does not apply to the decision and the attorney has reasonable grounds to believe that the grantor is incapable of making the decision, subject to any condition in the power of attorney that prevents the attorney from making the decision unless the fact that the grantor is incapable of personal care has been confirmed.



HCCA Decisions


The HCCA applies to decisions respecting treatment, admission to a care facility [5] and "personal assistance services," which is a term defined in the HCCA to mean only services provided in a nursing home.


SDA Subsection 49(1)(a) only authorizes the Attorney to make the decision if the HCCA authorizes the Attorney to make it.  HCCA authority to make a substitute decision first requires a finding that the Grantor is incapable of making that decision, then depends upon the hierarchy of substitute decision-makers in ss. 20(1) and the additional requirements in ss. 20(2). 


Excepting only a court-appointed guardian of the person, an Attorney named in a valid POA is at the top of the hierarchy of substitute decision-makers, so he, she or they are the likely substitute decision-makers in preference to (other) family members in the absence of guardianship litigation.  Subsection (2) requires that the Attorney be willing and available to make the decision, as well as capable with respect to the decision to be made. 


The requirement that the Attorney be capable with respect to the decision to be made is only sensible: we do not substitute consent of an incapable patient for consent by an incapable Attorney or other substitute decision-maker.  The simple reason for this is that the health practitioner requires informed consent to the treatment decision, which can only be given by someone able to understand information relevant to the decision and able to appreciate its reasonably foreseeable consequences-which is the HCCA definition of "capacity."  Assessing patient's capacity to make the decision, as well as assessing the capacity of substitute decision-makers (including Attorneys for personal care) is therefore the responsibility of the health practitioner seeking consent to the treatment he or she proposes. 


In practice, few health practitioners are aware there is a test for capacity, let alone aware of their professional obligations around assessing patient or Attorney capacity-next time you go for a medical checkup or a visit to the dentist, ask how he or she would assess your capacity to consent to the treatments they propose, or if they know and have charted from whom to obtain substitute consent for your treatments.  If the health practitioner gets that far, ask about substitute consent if your Attorneys for personal care disagree among themselves about consenting to your treatment...


SDA Decisions


As noted above, if the HCCA governs the decision, there must be a finding of incapacity respecting that decision made under the HCCA.  That Act covers treatment decisions, decisions about admission to a nursing home and decisions about personal assistance services in a nursing home.  Broader care decisions are governed by the SDA.  Although the Act does not contain a definition of "personal care," what may be covered can be inferred from s. 45, which defines "incapacity for personal care:"


A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.


So, going back to s. 49, ante, when the Attorney has reasonable grounds to believe the Grantor is incapable of any of the things mentioned in s. 45, he or she has the right to make decisions for the Grantor respecting those matters. 


Note however that the triggering of substitute consent is "subject to any condition in the power of attorney that prevents the attorney from making the decision unless the fact that the grantor is incapable of personal care has been confirmed."  Confirmation means an assessment of capacity by an Assessor qualified under the Act to conduct the assessment, or confirmed as specified in the POA.  This is set out in SDA s. 49(2),


A power of attorney that contains a condition described in clause (1) (b) may specify the method for confirming whether the grantor is incapable of personal care and, if no method is specified, that fact may be confirmed by notice to the attorney in the prescribed form from an assessor stating that the assessor has performed an assessment of the grantor's capacity and has found that the grantor is incapable of personal care.


Some lawyers provide that the Grantor's personal physician may confirm the Grantor's incapacity.  Respectfully, I submit this is not a good idea.  In my experience, few health practitioners understand the concept of "capacity" as it relates to treatment decisions, let alone as it relates to personal care generally.  Further, the Grantor may have his or her particular family physician in mind, but there is no guarantee that doctor will be available or willing to assess capacity when the need arises.


Conversely, failing to provide a means of confirming incapacity for personal care leaves your client at the mercy of his or her Attorneys.  While they may act in good faith, not infrequently they act based upon their view of the Grantor's best interests, rather than his or her values, beliefs and lifestyles.  Do you really want your children deciding, without any safeguards at all, when they should move you into a retirement villa?


The Incapable, Unwilling or Unavailable Attorney


While both SDA and HCCA contain schemes for a person found incapable of making their own decisions to challenge the findings of incapacity that trigger the requirement for substitute consent, neither contains a scheme of recourse for an Attorney found incapable by a health practitioner to challenge that finding.  However, remedies can be imputed.  Under the SDA, the "spurned" and allegedly incapable Attorney remains free to apply to be appointed guardian of the person.


HCCA s. 33 authorizes anyone to apply to be appointed "representative" to make treatment and other decisions for a person found incapable of making that decision, if the incapable person does not have a guardian of the person or an Attorney for personal care-which is the case if the Attorneys named in a POA are unwilling or unavailable to make the decision, or incapable of making it.  The section has been used in a few cases by substitute decision-makers found incapable by the patient/grantor's health practitioner, but never successfully.  For example, in L.M. (Re), 2005 CanLII 48162 (ON C.C.B.), the patient's attending physician initially applied to the Board to challenge the refusal of the patient's husband and son to consent to Mrs M.'s admission to a care facility.  However, he discontinued that application when he concluded that neither was capable of making the admission decision on behalf of Mrs M.  Both then applied to the Board to be appointed representative.  The Board concluded that neither was capable and therefore declined to grant the application.


If the POA appoints more than one Attorney for personal care, the SDA stipulates that they must act jointly unless the POA otherwise specifies.  If one of the Attorneys is incapable, unavailable or unwilling to make a decision, presumably he or she ceases to be an Attorney for the purposes of that decision.  The remaining Attorneys must still act in concert.  Nothing precludes appointing alternate Attorneys, but remember that health care decisions do not always wait for a gathering of relatives before they have to be made. 


If no Attorneys are capable, willing and available at the time to give consent to treatment or care decisions, the result is the same as if there was no POA: substitute consent is given by the next capable, available and willing substitute decision-maker in the hierarchy set out in s. 20(1) HCCA:


1. The incapable person's guardian of the person, if the guardian has authority to give or refuse consent to the treatment.


2. The incapable person's attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.


3. The incapable person's representative appointed by the Board under section   33, if the representative has authority to give or refuse consent to the treatment.


4. The incapable person's spouse or partner.


5.  A child or parent of the incapable person, or a children's aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children's aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent. 


 6. A parent of the incapable person who has only a right of access.


7. A brother or sister of the incapable person.


8.Any other relative of the incapable person. 


"Spouse, " "Partner" and "relative" are defined terms [subsections 20(7) to (10)]. 


If a person has no guardian, attorney or relatives capable, willing and available, Public Guardian and Trustee is the substitute decision-maker of last resort.  In practice, calls to the PG&T treatment division for substitute consent are first met with an inquiry as to whether or not there is a friend, neighbour or acquaintance familiar with the incapable patient who is willing to give consent.  If so, PG&T encourages the health practitioners to have that person apply to the Consent and Capacity Board to be appointed representative.


Note also that, when substitute decision-makers disagree among themselves as to whether or not to consent to a treatment or to admission to a care facility, majority does not rule.  The treatment team may only accept unanimous consent, absent which the decision defaults to PG&T [HCCA ss 20(5)].  When that happens, if there is no POA, family members sometimes apply to The Consent and Capacity Board to be appointed representative to give or refuse consent-see paragraph 20(1).3, above and s. 33 HCCA. [6]


Quaere, whether the same process can be used if the Attorneys for personal care disagree among themselves.  Note that an Attorney ranks above a Board appointed Representative in the hierarchy, so the Board is unlikely to appoint a Representative if there is a valid POA.  One way around the problem, if the parties wish the intervention of The Consent and Capacity Board in the decision-making process, would be to have all named Attorneys resign in accordance with SDA ss. 52 or 53:  There is no longer a POA.


Revocation of a POA


SDA subsection 47(1)(a), reproduced above, provides that a person is capable of revoking a POA if at the time of revocation he or she is capable of executing a POA. 


However, what if the POA contains "advance directives" about care?  Remember that the advance directive is only effective if the Grantor was capable of expressing it at the time of execution and that a higher test of capacity applies to treatment wishes than to capacity to execute the POA.  So, revocation of a POA may not operate to revoke an "advance directive" in a POA if at the time of revocation the Grantor is incapable respecting that treatment wish.


Revocation must be in writing [SDA ss. 53(2)], usually accomplished in the preamble to a new POA to be executed.  Note that a person may have multiple POAs [SDA ss. 53(1)(c)], in which case care must be taken in revocation to identify which are revoked.


But, did the Grantor, in revoking the prior POA also intend to nullify the treatment directions contained in the former POA?  This will not be a problem if the new POA only changes the named Attorneys but otherwise is consistent with the prior POA.  However, if the care directions contained in the new POA are different than in the former one and if there is a concern that your client's capacity respecting treatment decisions has waned in the interval, you may have to address your mind to both tests for capacity: capacity to execute the POA as well as capacity to express wishes about treatment.


If the POA being revoked contains "special provisions" authorizing the use of force, restraint and/or detention against the Grantor, SDA s. 50 imposes special requirements for the revocation of those provisions.



Case Comments:


Re Vecchiarelli [7]


Re Vecchiarelli concerned contested applications with respect to incapable person's guardian of personal care and guardian of property. On consent, the mother was appointed guardian of personal care and a trust company was appointed the guardian of property. An issue arose as to the legal costs incurred by the parties in the proceedings, including the father, with the Court opining that:


It can no longer be said in litigation of this kind that the parties and their counsel can reasonably expect all of their costs to be paid for by the assets of the estate (or in this case, the substantial funds available for the future care of [the incapable person]). "Success" is not as significant a factor in these cases as in the normal civil litigation case. The issue is the best interests of the person under disability.


Although the Public Guardian and the Trust Company were awarded the amounts requested by them out of the incapable person's assets, on the basis that the incapable person derived concrete benefit from those costs, the same did not apply to the costs incurred by the husband and wife. As the Court that the husband's conduct was cause of significant portion of mother's costs, and that the husband request for costs (from the incapable person's assets) were grossly excessive, the husband's costs were reduced by almost $14,000.00. In the Court's view, the bulk of the husband's costs provided no value to his incapable son.


Although the Court found that the mother did in fact have a key role as the only serious candidate as guardian for personal care and as only real source of information for development of management plan, the Court found that the mother's costs were also excessive given that she had a very real personal financial interest as well as interest of incapable person as guardian, and that she too, albeit to a lesser extent, allowed acrimony with her divorced husband to obscure the essential issue that of protecting the interests of her incapable son and spending his money only for his benefit.  Hence, the mother's costs, awarded on a partial indemnity basis, were reduced by over $10,000.00 as well. Thus, Re Vecchiarelli cautions would-be guardians to tread carefully, reasonably, and cost-effectively when making applications for guardianship of incapable persons.


Bosch v. Bosch [8]


Michael Bosch was married to Maria Bosch and they had two children, Alan and Charlotte. Michael, the father, had resided in a nursing home since 2005. Maria had acted as his guardian of property and his attorney for personal care. However, in 2009, Alan commenced two applications seeking orders declaring Maria incapable and appointing him as her guardian of property and personal care, and appointing him as father's guardian of property and personal care. At mediation, the parties entered into settlement agreement resolving litigation, subject to court approval. Pursuant to that agreement, the first application would be dismissed without costs and the second application would be settled by appointing mother and son as joint guardians of father, and on other terms. As well, Maria would seek court approval of the settlement and her reasonable costs of the motion for approval would be paid by Michael's estate on a full indemnity basis.


Maria brought her motions for court approval of settlement. However, Justice D. M. Brown was not prepared to approve the settlement on the materials filed, due to several reasons, the first of which is important and is as follows (at paragraph 4):


(i) I have significant reservations about appointing two competing litigants as joint guardians for Michael's personal care. How, might I ask, will Michael's best interests be served by appointing as his joint guardians two persons who have engaged in litigation against each other? If there is a history of lack of co-operation between son and mother, I do not see how appointing them as joint guardians will suddenly change their relationship into one of harmony and co-operation. Absent clear evidence of the unalterable willingness of two disputing persons to put their personal differences to one side and to act together only with a view to the best interests of an incapable person, joint guardianship can become a minefield, with the incapable person the loser: Chu v. Chang [2009 CarswellOnt 7246 (Ont. S.C.J.)], 2009 CanLII 64816 para. 30; and 2010 ONSC 294 (Ont. S.C.J.) (CanLII), para. 4;


As can be seen, his Honour cited Chu v. Chang assupport for this position. The other reasons were as follows: (ii) Maria and Alan did not file a joint Guardianship Plan signed by each; (iii) evidence of Michael's incapacity with respect to personal care decisions was not included in the motion records seeking approval of the settlement; and, (iv) Maria did not file any evidence about the costs of the motion to approve for which she seeks payment from Michael's estate, and neither party advanced any reasons why Michael's estate should pay for the legal costs of their dispute.


His Honour required further evidence on all of the issues and, therefore, adjourned the motions sine die. Of note, His Honour concluded at paragraph 5 that, "If Alan and Maria wish a court to consider their request for a joint guardianship, they must each file affidavits which demonstrate that they will stop arguing, start co-operating, and focus their efforts solely on the best interests of Michael." [9]


Johnson v. Huchkewich [10]


The case of Johnson v. Huchkewich involved a similar set of facts as that of Nguyen-Crawford v. Nguyen, thus underscoring the point that many individuals view power of attorney documents as a way in which to gain access to the assets of a vulnerable individual.


In this Johnson v. Huchkewich, one of the widows' two daughters invited her mother to stay with her while the mother's home was being painted. What ensued was described by the Court as a "a disgraceful tug-of-war over [the widow], clearly motivated by [the daughter's] desire to obtain some or all of [the widow's] assets. During this brief visit, the daughter took her mother to a lawyer and had her execute powers of attorney for personal care and for property in her favour. Not only did the daughter instruct the lawyer, with her mother present, but the daughter explained the document to her mother, in Polish; and no one else in the room understood Polish. Shortly after that and as stated by the Court "'before the ink had dried'?", the daughter used the power of attorney to transfer $200,000 from the joint account in her mother's and other sister's names into her own account. Fortunately, the justice system intervened, but not without the attendant cost associated therewith, and a number of orders were made against the attorney/daughter, including:


  • An order that she return of the $200,000 to the joint bank account.
  • An order that the other sister/daughter be appointed as guardian of the widow's property and personal care and that the widow would reside with that daughter and her family; and, among other things
  • An order restraining the attorney/daughter from harassing and annoying her sister/the appointed guardian.


Interestingly, and somewhat disappointingly, these facts and orders were brought to light in the context of a will challenge by the same sister who had misappropriated her mother's funds. This application, however, was dismissed as not even being a "close call" and costs submissions were requested. The costs have not been adjudicated as yet.


While the Courts were able to remedy the attorney injustices in Johnson v. Huchkewich and Nguyen-Crawford v. Nguyen, these cases raise the important question of how many power of attorney abuse cases exist, but go unreported or unnoticed by our judicial system, thus leaving vulnerable older at risk of being preyed upon by individuals seeking financial gain, to the vulnerable and/or incapable person's detriment?


WEL acts in the litigation and mediation of all Substitute Decisions Act proceedings including guardianship, power of attorney disputes and capacity proceedings. Given the high costs and high conflict associated with these proceedings wherever possible resolution outside of the court process is recommended and creative battles for such resolution are routinely canvassed as between our counsel and clients.



[1] Substitute Decisions Act, S.O. 1992, c.30

[2] Many of the CCB judgments, or "Reasons for Decision" are posted at www.canlii.org

[3] Note that a plan of treatment is defined in s. 2 HCCA to include the withholding or withdrawing of a treatment.

[4] Scardoni v. Hawryluck, 2004 CanLII 34326 (ON S.C.), reversing the CCB Decision on other grounds, paragraphs 67 to 69

[5] "Care facility" is a nursing home, not a retirement home.  Admission to a retirement home is a personal care decision governed by the SDA.  A "nursing home" is any facility admission to which is administered by a Community Care Access Centre.

[6] See, for example, M.B. (Re), 2008 CanLII 3954 (ON C.C.B.), a dispute between the patient's children about whether or not he should have a feeding tube installed.

[7] 2010 CarswellOnt 8023.

[8] 2010 ONSC 1352.

[9] 2010 ONSC 1352 at par. 5.

[10] 2010 CarswellOnt 8157 (Ont. S.C.J.).



Kimberly A. Whaley and Brian Wilson continue to be active in their Estate Mediation business. Follow this link to estatemediators.ca to learn more about their mediation services.

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