Parents, sometimes, appoint all their children, jointly or jointly and severally, as their attorneys for property and personal care. In most cases, it is to prevent one child feeling left out or in the genuine hope and belief that the children will work together to carry out the parents’ wishes.
Unfortunately, children do not always work together as intended.
Appointing two or more attorneys to act together can have unintended and, in some cases, disastrous consequences. Where the attorneys of an incapable person do not agree on an issue and are at an impasse, the matter can end up in court on a motion for directions from a judge, which can be a costly exercise both financially and personally for the siblings.
In exceptional circumstances, where there is an impasse between attorneys, the court will intervene and make a decision having regard to the best interests of the incapable person. The recent case of Marcantonio v. Marcantonio et al, 2024 ONSC 3588, sheds light on the Court’s approach when there is an impasse between siblings who had been appointed as their mother’s attorneys for property and personal care. The applicant wanted to place the mother in a retirement home whereas the respondent was of the opinion that the mother’s needs required placement in a long-term care facility. The applicant stated that the mother should be placed in a retirement home where she will have social interaction and activities. The respondent took the position that the retirement home lacks staff and that the mother has special medical and behavioural needs that cannot be met at the retirement home. The mother was prone to night screams and did not respond well to being alone.
The Court, meanwhile, did not have any independent evidence to support either position. In this situation, the Court looked to the child best suited to make the decision or in other words which child is in a better position to truly understand the mother’s needs and wishes. In this case, it was found that the respondent was close to the mother and had, primarily, attended to her care for over a decade. Based on the evidence, the Court decided that the respondent shall be the sole attorney in charge of making the decision with regard to the placement of the mother in the long-term care facility.
At the same time, the Court found the applicant was better suited to be the sole attorney with regard to the listing and sale of the mother’s house. However, the Court pointed out that the applicant does not have carte blanche powers to do as he pleases.
The takeaway from all this is the appointment of attorneys should be a well considered decision. If you believe your children may not see eye-to-eye on matters its best to avoid appointing them together. Another scenario is when parents appoint one child as the attorney for property and another as the attorney for personal care. The attorney for property (who holds the purse) may disagree that the mother requires an assistive device which the attorney for personal care may want for the mother, thereby giving rise to conflict between the attorneys.
Therefore, think carefully about your family dynamics before you appoint your attorneys and discuss the matter with your lawyer.
This blog post was written by Nuwanthi Dias, a member of the Wills and Estates and Estate Litigation teams. She can be reached at 613-369-0385 or at nuwanthi.dias@mannlawyers.com.
