Removing an Attorney Under Power of Attorney with a Guardianship Application

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WEL Partners

Written by: WEL Partners

Posted on: October 7, 2020

Categories: Features

Replacing an attorney with a guardian is often seen as an option of last resort. Generally, courts are loath to interfere with the expressed will of a grantor of a power of attorney.[1] The reluctance to remove an attorney is compounded by the fact that sections 22(3) and 55(2) of the SDA require that a court “shall not” appoint a guardian if an alternative course that is less restrictive of the person’s decision making rights is available.

The test for removing an attorney was outlined in Teffer v Schaefers. Fragomeni J. stated that there must be strong and compelling evidence of misconduct or neglect on the part of the attorney before a court ignores the clear wishes of the donor, provided the evidence established that the donor was capable of granting the proper power of attorney. The court will also investigate whether the best interests of the incapable person are being served by the attorney.[2]

The standard for attorneys’ conduct is not perfection. When attorneys are in conflict with one another the court will not replace them with a guardian unless it can be shown that the conflict is sufficient to conclude that the incapable person’s interest are being adversely affected.[3]

[1]             McMaster v McMaster, 2013 ONSC 1115 at para 22, [2013] OJ No 877.

[2]             Teffer v Schaefers (2008), 93 OR (3d) 447 at paras 24-25, [2008] OJ No 3618.

[3]             McNutt v Draycott, 2014 ONSC 5363 at paras. 42, 45, [2014] OJ No 4358.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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