Written by Irvin Schein and originally published at irvinschein.com.

The recent Superior Court decision in McNutt v. Draycott illustrates what can happen when an elderly person nominates a number of his adult children as his attorneys for personal care and a disagreement arises among them as to what is in their father’s best interests.

In this case, Peter Draycott was a 94 year old man living in his own home with two of his children, Geoffrey and Yolis. His other two children, Daphne and Anthea, did not live with him. They were unhappy with the quality of care that he was receiving from Geoffrey and Yolis. They wanted Peter to be placed in a long term care facility. Geoffrey and Yolis disagreed.

All four adult children were named as attorneys in Peter’s power of attorney for personal care.

Daphne applied to the court for an order appointing her as Peter’s guardian, thereby terminating the power of attorney and giving her the right to move her father to a care home.

In her application, Daphne alleged that Peter was suffering from neglect and abuse while under the care of Geoffrey and Yolis. Daphne alleged that Geoffrey had no assets and was not working, and was taking advantage of Peter by living in his house rent-free. She and Anthea insisted that he would be better off in a long-term care facility.

In response, Geoffrey swore that he and Yolis had adequately cared for Peter in his own home and that Peter preferred to be in his own home rather than in an institution. The allegations of neglect and abuse were denied.

The material before the court included a capacity assessment of Peter, which indicated that he was incapable of his personal care.

A report prepared by the Mississauga Halton Community Care Access Centre was filed indicating that while there was obvious family discord, the evidence as to Peter’s condition was inconclusive. He appeared to be fit and agile for his age, usually well dressed and clean. However, occasionally he appeared unkempt and the clothing and other items in his room were found to be in disarray.

At one point Daphne called the police to attend at the house, which they did. The policeman’s notes indicated that while Peter was obviously not mentally capable, he appeared to be happy with the arrangements. The policeman indicated that he had no concerns.

As a result, the court was faced with conflicting evidence.

As she was the applicant, the onus was on Daphne to satisfy the court not only that Peter was incapable of making his own decisions, but also that there was no appropriate alternative course of action other than a guardianship. A power of attorney for personal care is considered to be an appropriate alternative course of action provided, of course, that there was no reason for the court to prefer a guardianship arrangement. A court would do so, for example, if the court was satisfied that the named attorney or attorneys were not doing their job properly.

In this case, the court had little problem finding that Peter was incapable of personal care. However, the court was not satisfied that the existing power of attorney was not adequate to provide for that care. As far as the court was concerned, based on the conflicting evidence, Daphne had not met the onus upon her to satisfy the court that Peter’s needs were not being addressed adequately under the current arrangements. The court felt that while he was not being cared for to a standard of perfection, such a standard was not required. What was required was that Peter be reasonably cared for and the court felt that this was taking place.

The court pointed out that it was Peter’s wish that his children be responsible for his care. His wishes should be observed unless it was clear that his interests were being harmed. Since there is evidence that he was doing reasonably well in his own home, it was not shown to the court’s satisfaction that his interests were being harmed. Furthermore, the court observed that there were advantages to Peter being able to live in his own home and in comfortable surroundings with his children.

The court did make reference to the existence of a conflict between the children. The court felt that the conflict by itself was not adversely affecting his interests because on a practical level, day to day decisions were made by Geoffrey and Yolis and there was no satisfactory evidence that those decisions were causing harm to Peter.

This is one of those sad cases of a dysfunctional family going to war over a parent who probably would have been appalled by these events, if he had been capable of appreciating them. To parents, this is a valuable lesson as to the care that has to be taken in deciding to whom to grant a power of attorney. To lawyers, this is an important lesson in the quality of evidence that needs to be brought forward in order to displace a parent’s wishes as expressed in a power of attorney.