Executing powers of attorney is an important component of estate planning and allows individuals to decide who will manage their affairs should they become incapable of doing so. Individuals can appoint an attorney for property decision-making and for personal care decision-making. A power of attorney for property may provide that is effective on a specified date or on the happening of a contingent event, otherwise it is operative upon signing. In contrast, a power of attorney for care only becomes effective if the grantor is mentally incapable of making some or all of the decisions about their personal care.
The decision-making power granted to an attorney is often broad, and an attorney’s decisions can have a major effect on the incapable person’s quality of life.
As estate litigators, we frequently meet with people who disagree with the actions of an incapable person’s attorney. During these consultations, we are often asked how an attorney can be removed when there are concerns that they are not acting in the incapable person’s best interest.
An attorney can be removed either by revoking the power of attorney or by court order. However, if the grantor of the power of attorney lacks the requisite capacity, they will not be able to revoke the power of attorney. In this situation, the only option is for someone to bring a court application seeking the removal of the attorney.
Before bringing a court application, it is important to understand that the courts are extremely hesitant to remove an attorney acting under a valid power of attorney, and this is for good reason. All capable individuals are entitled to execute powers of attorney in contemplation of incapacity. These powers of attorney represent a grantor’s express directions as to who should act on their behalf when they are no longer able to do so. The court shows great deference to these directions and will not interfere absent clear evidence of wrongdoing.
The court will only remove an attorney on an application when the applicant demonstrates strong and compelling evidence of misconduct or neglect by the attorney, and that removing the attorney is in the best interest of the incapable person. This is a high bar to meet and requires the applicant to demonstrate, with evidence, that an attorney is in breach of their obligations. An applicant who relies only on emotional or moral arguments, or who simply disagrees with the choices made by an attorney, will not be successful.
If you suspect an attorney is neglecting their obligations or engaging in wrongdoing, it is important to collect evidence demonstrating this before commencing an application. You can do this by keeping notes or other documentation showing an attorney’s wrongdoing or inaction, as well as determining whether there are other people, such as the incapable person’s family, friends, or care workers, who share your concerns and may be able to provide additional evidence. When collecting evidence, however, it is important not to interfere with the attorney’s ability to carry out their duties, as they remain legally entitled to act on behalf of the incapable person until they are removed by a court order. It may also be helpful to consult an estate litigation lawyer early on in this process to determine what evidence may be needed to bring a successful application based on the circumstances.