Removal of an Attorney Under an Enduring Power of Attorney – When and Why?

January 29, 2015

Under what circumstances and at what point in time can or should the Court remove a lawful Attorney appointed under an Enduring Power of Attorney?  This was the main issue which Justice Rosinski was required to address in the matter of Vernon v. Sutcliffe, 2014 NSSC 376.
By Enduring Power of Attorney dated November 15, 2013, Jean Sutcliffe appointed her two sons, Ted and Rick, as her lawful Attorneys.  Subsequent to the document being signed, Ms. Sutcliffe’s cognitive abilities deteriorated due to Alzheimer’s disease.  In or about May and June 2014 Ted and Rick began to exercise the authority granted to them by the Power of Attorney document.  Their sisters Catherine Vernon and Lesley Ferguson had concerns with respect to the actions taken by Ted and Rick and brought an application for an Order removing Ted and Rick as Attorneys for their mother.  The application was heard on September 22 and 23, 2014.  Justice Rosinski rendered his decision on October 17, 2014.

The parties acknowledged that when the Power of Attorney was signed on November 15, 2013, Jean Sutcliffe had the capacity to understand and execute the document.

Before addressing the merits of the application Justice Rosinski assessed two preliminary issues:

  1. Could the Court review impugned conduct of the Attorneys which occurred prior to the donor becoming legally incapacitated? and
  2. Was expert medical opinion mandatory in order for the Court to determine if and when the donor had become legally incapacitated?

Issue One

Section 5(1) of the Powers of Attorney Act states:

“Where a donor of an enduring power of attorney becomes legally incapacitated, a judge of the Trial Division of the Supreme Court may for cause, on application, …”

The section then goes on to give specific powers to the Court including substituting another person for the Attorney.

Justice Rosinski concluded that before the Court could entertain an application to remove an existing Attorney, it must first be satisfied that, at the time of the application, the donor was legally incapacitated.  He further held that, once a finding is made that the donor is legally incapacitated the Court can, in assessing whether the Attorney should be removed, review the conduct of the Attorney from the time the Power of Attorney document was executed forward.

Issue Two

Ted and Rick submitted that as a matter of law expert medical opinion was required in order to establish legal incapacity for purposes of section 5 of the Powers of Attorney Act.

Legal incapacity is not defined in the Powers of Attorney Act.  After reference to other legislation including the Personal Directives Act and the Incompetent Persons Act as well as reference to prior cases, Justice Rosinski concluded that expert medical opinion was not a mandatory pre-condition to a finding by the Court that a person was legally incapacitated.  He did confirm that it is always preferable for the Court to have the best available evidence and that in almost all circumstances the Court would expect to receive expert opinion evidence when it is called upon to assess a person’s legal capacity.

Merits of Application

On the evidence, Justice Rosinski concluded that by the time of the application Ms. Sutcliffe was legally incapacitated and as such the hearing could proceed.

Prior to assessing the principles to be applied in an application for removal of a legal Attorney, Justice Rosinski confirmed an earlier decision of Justice LeBlanc to the effect that “dissatisfied family members” should not be permitted to make application under the Incompetent Persons Act to be appointed guardian in order to do an end run around the more stringent requirements for removal of a lawful Attorney as set out in the Powers of Attorney Act.

With respect to the proper test to be applied for removal of a lawful Attorney appointed under an Enduring Power of Attorney, Justice Rosinski cited an earlier decision of Justice LeBlanc in which Justice LeBlanc stated:

“For an attorney to be removed under the Powers of Attorney Act, the court must thus gauge [the lawful attorney’s] duty towards [the donor] according to [their] abilities and remove [them] only upon a finding of misfeasance or compelling evidence of misconduct or neglect”

Justice LeBlanc stated further:

“The standard for removal is not that the care an attorney gives is the best available, or the most financially or medically prudent, but that it is undertaken in good faith and for the donor’s interest.  It is nonetheless important that the [lawful attorney] understand that [their] care of [the donor] has to comply with what is in [the donor’s] best interests.”
Justice Rosinski concluded there was no indication of misfeasance, or compelling evidence of misconduct or neglect.  He concluded that the brothers had acted in good faith in an attempt to ensure the best interests of their mother.

The case confirms certain pre-conditions before an application for removal of an Attorney can be brought and what evidence can be considered by the Court on the application.  It further confirms that a donor’s choice of Attorney will be given significant deference and an Attorney will only be removed on clear and compelling evidence.

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