Conflicts between Joint Attorneys: Using Guardianship as a Solution

Douglas J. Green & Natasha Bone

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In Ontario, there are three different kinds of Powers of Attorney (POA’s). A Continuing Power of Attorney for Property covers your financial affairs and, if you wish, allows the persons you name as attorney to act for you even if you become mentally incapable. A Power of Attorney for Personal Care covers your personal decisions such as housing and health care. Such a POA allows your attorneys to make personal care decisions for you when you are incapable of doing so. This is the document you would sign to provide instructions concerning your wish to die in dignity. It is often referred to as a Living Will. Lastly, a non-continuing Power of Attorney can be prepared to authorize your attorneys to act in your stead in a specific situation. This is the type of document needed, for example, to complete a real estate transaction for you when you are away from the jurisdiction at the time of the closing of the transaction.

Two or more attorneys can be named to act jointly. What would you do if you were named as attorney jointly with another person and you and your co-attorney did not get along? The law requires unanimity among attorneys as a rule.

Consider the following scenario:

In 1995, W executed POA’s which named her husband, H as attorney and as substitute joint attorneys she named her children, B and G. Well before 1995, when W executed the POA’s, B had been an unsavory character and had even spent time in jail for crimes based on dishonesty, including forging a mortgage on H and W’s home. W had named B as a substitute co-attorney with G, nonetheless as stated above.

From 1998 to 2001, H managed the finances of both himself and W with G’s help as W started to suffer from Alzheimer’s Disease. H died in 2001. W is now an elderly woman and her Alzheimer’s Disease has advanced. She resides in a nursing home. She is incapable of managing her property or making personal care decisions.

Since the death of H, G exclusively carried out the responsibility of looking after W’s needs. All decisions concerning the financial affairs of W are made by G without any input from B.

Prior to H’s death, H and B did not communicate. Furthermore, both before and after H’s death, G and B did not communicate. G is not willing or prepared to participate with B in any decision concerning W’s personal care or her financial affairs, despite B’s claims of complete rehabilitation. What can G do?

The Substitute Decisions Act

Under the Substitute Decisions Act (the SDA), a continuing POA for Property is terminated when the court appoints a guardian of property under section 22(1). Similarly, a POA for Personal Care is terminated when the court appoints a guardian for the person of the grantor under section 55. The criteria under section 22(1) of the SDA to appoint a guardian of property for a person includes the person being incapable of managing property and the necessity for decisions to be made on his or her behalf by a person who is authorized to do so. The criteria under section 55 of the SDA to appoint a guardian of the person include the person being incapable of personal care decisions and the necessity for decisions to be made on his or her behalf by a person who is authorized to do so.

In addition to these criteria, courts have stated that the central structuring factor for the exercise of the court’s discretion is what is necessary for the benefit and protection of the person under disability, not that person’s children. The governing principle is the best interest of the person under disability.

A method for permanently resolving conflict between two or more attorneys is an application by one for appointment as sole guardian. In the scenario described above, G brought an application to be appointed the sole guardian of W’s property and sole guardian of W’s personal care. G indicated that if she is appointed sole guardian of property and for personal care for W she intended to give instructions to W’s health care providers and nursing home to provide information to B in a full, complete and ample manner; intended to inform B of significant changes in W’s health status; and intended to inform B of any major decisions concerning W’s financial affairs. G did not wish to consult B, nor did she offer to do so.

Ultimately this was found acceptable and the judge appointed G as guardian of property and guardian of personal care of W. Nonetheless, the judgment permitted B to obtain any medical information with respect to W and ordered that G shall provide B with reasonable notice of any major decision that G intends to make with respect to personal care or financial affairs of W and to give B the opportunity to oppose such decision by appropriate court application if B deems necessary to do so.

As the above scenario suggests, it is entirely possible that two named attorneys may consistently not get along. In such a situation, an attorney can consider applying under the SDA to be the sole guardian of the property and/or the sole guardian of the person.