Application for Directions – Discretionary Decisions

February 19, 2016 Stuart Clark Power of Attorney Tags: , , 0 Comments

Being an Attorney for Property is often a thankless job. You are often required to make difficult decisions on behalf of an incapable person regarding their ongoing financial wellbeing, in doing so opening yourself up to potential liability not only to the incapable person themselves, but also potentially to the beneficiaries of the incapable person’s estate. As a result of the difficult decisions which Attorneys for Property often have to make, and the risk of liability that comes with the job, it should come as no surprise that some Attorneys for Property turn to the court for guidance.

Section 39(1) of the Substitute Decisions Act (the “SDA“) provides the statutory framework under which an Attorney for Property may apply to the court for directions, providing:

“If an incapable person has a guardian of property or an attorney under a continuing power of attorney, the court may give directions on any question arising in connection with the guardianship or power of attorney.”

In Keller v. Wilson, 2015 ONSC 6962, the Ontario Superior Court of Justice was faced with an Application for directions brought by two Attorneys for Property under section 39(1) of the SDA, whereby the Attorneys asked for the assistance of the court with respect to whether they should comply with the request of the incapable person’s son that the Attorneys provide him with funds from the incapable’s property, and that the Attorneys should sell certain real property owned by the incapable to finance such a transfer.

In determining whether it could make such a decision for the Attorneys, the court looked to sections 37(1) and 37(3) of the SDA which authorize the Attorneys to make expenditures to support the incapable person’s dependants, as well as to make gifts or loans to the incapable person’s friends and relatives. The court also looked to the evidence on hand that the incapable had specifically advised her lawyers that she did not want to provide her son with an allowance, and about the difficult relationship which the incapable had previously had with her son.

The court ultimately refused to exercise the discretionary decision on behalf of the Attorneys, looking to the 1903 decision of Re Fulford, 29 O.L.R. 375, wherein the court provided the following:

“The executors cannot come to the Court and ask whether the present is a good time or a bad time to sell stock or anything else, or ask whether a price offered is sufficient or insufficient. The advice which the Court is authorized to give is not of that kind; it is advice as to legal matters or legal difficulties arising from the discharge of the duties of the executors, not advice with regard to matters concerning which the executors’ judgment and discretion must govern.” [emphasis added]

Keller v. Wilson makes it clear that discretionary decisions ultimately rest with the Attorneys alone, and the court will not exercise their discretion for them. While the court will provide direction with respect to legal issues which arise within the management of an incapable person’s property, they will not exercise discretionary decisions for the Attorney for Property. Such discretionary decisions ultimately rest with the Attorney for Property alone.

Stuart Clark


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