By Anna Okorokov

Your Attorney for Personal Care is the individual to whom you are giving the power to make health decisions on your behalf. Should you ever be in the position where your mental faculties are too impaired to make these decisions yourself, your Attorney can make decisions in respect of health care, nutrition, shelter, clothing, hygiene or safety.

By nominating an alternative or substitute Attorney, you can gain greater certainty that your needs will be taken care of by those who you trust. However, what happens when your nominated Attorneys do not agree? Or when one of them no longer acts in your best interest? In a recent decision by the Ontario Superior Court of Justice, the court removed an Attorney and instated the substitute Attorney named in the Power of Attorney for Personal Care (Aiello v. Bleta et al. ONSC 62 [2020]).

The two Attorneys were siblings, both acting for their incapacitated mother. The daughter, who was the substitute Attorney was actually the person who had been providing care to the mother for several years prior to the action. She had asked the son to reimburse some expenses incurred in this duty, which he denied. This fact was considered by the court, along with the evidence that the son had failed to attend at a scheduled appointment to sign off on treatment. The son was also not making efforts to foster a relationship between the mother and her family and friends, which is a requirement of an Attorney.

All these factors put together all contributed to the court’s decision to remove him as Attorney and place the daughter as the sole Power of Attorney. The court noted that the son did not administer his duties in good faith and that the daughter had become a de facto Attorney for Personal care as a result of caring for the mother for several years. Because the two siblings also had a history of litigation between them, the court deemed them incapable of making joint decisions in the best interest of their mother.

This case shows the importance of selecting your Power of Attorney and the alternative back up. Will the two individuals disagree? Who is most likely to be available and willing to execute their duties as Power of Attorney? Selecting an individual who lives near you and has the available time and drive to undertake the task of caring for you could be more valuable than someone with greater experience but with geographical distance or a low interest in the position.