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Estates & Wills & Trusts

Demographics driving rise in POA litigation

Disputes among attorneys will increasingly come before Canadian courts as the country’s population continues to age, says Toronto estates and trusts lawyer Suzana Popovic-Montag.

In a recent decision, Superior Court Justice David Price ruled in a case that pitted an elderly man’s attorney for personal care against one of his joint attorneys for property.

The man, who suffered from Alzheimer’s, had appointed his two sons under a power of attorney (POA) for property before moving into a retirement home, while his daughter was named in his POA for personal care.

Popovic-Montag, managing partner of Hull & Hull LLP, tells AdvocateDaily.com that POA litigation is a growing practice area for lawyers in the field.

“People are living longer, which means they are more likely to be in situations where they need attorneys for personal care and property,” she says.  

In addition, Popovic-Montag says the chances of disagreement are enhanced because it’s common for people to split the roles so that a number of individuals can be responsible for an incapable person’s affairs.

“You can get into situations where there is a power struggle between attorneys, who may have different views on the best interests of the person,” she says.

“This was a classic example,” Popovic-Montag adds, referring to Price’s decision.  

The siblings in the case ran into trouble when their father’s retirement home recommended his relocation to a secure long-term care facility.

While the sister, who was responsible for the father’s personal care, wanted to hire a personal support worker until the man could be moved to the new facility, one of her brothers, who maintained control over the father’s bank account, resisted the changes.

He told his sister that he would suspend payment of his father’s retirement home fees, and suggested an alternative retirement residence. This prompted her to apply to have her brother removed as the father’s joint attorney for property.

After mediation, the decision says, the brother agreed, among other things, to provide financial information to a third sibling and to consult an expert for guidance in choosing the father’s future care facility. A motion to have him found in breach of the agreement could not be heard before the father died.

Price’s decision ordered the brother to pay his siblings $50,000 for the costs of the litigation up until their father’s death, noting that he had interfered with his sister's ability to perform her role as attorney for personal care.

“It was a costly and time consuming exercise which, ultimately, proved unnecessary. For this reason, [the brother] will be required to pay [his siblings’] costs personally, and on a full indemnity basis,” Price wrote.

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