The Timeframe for Claiming Compensation as an Attorney for Property

June 1, 2016 Suzana Popovic-Montag Power of Attorney Tags: , , , , 0 Comments

When will an attorney for property be barred from making a claim for compensation? Is it proper for an attorney to seek compensation after the grantor’s death? The Ontario Superior Court of Justice addressed these issues in its reasons in Armitage v Salvation Army, 2016 ONSC 2043 (Canlii).

C2799653AAMr. Wiltse died on February 5, 2013. He had named the applicant, Ms. Armitage, as his executor. The only beneficiary under the will was a charity. Ms. Armitage had been appointed as the deceased’s attorney for both property and personal care prior to the deceased passing away. She began acting as his attorney in 2006 upon his admission to a hospital and subsequently thereafter a nursing home.  Ms. Armitage had submitted an amount for compensation on September 5, 2013 and proceeded to file a Notice of Application on January 30, 2015. The charity disputed Ms. Armitage’s entitlement to compensation, claiming that she had exceeded the time period within which a claim could be made under the Limitations Act, 2002. Specifically, it claimed that the provisions in the Substitute Decisions Act created a right to compensation each year, from which the two year limitation period began to run at year’s end.

The Court considered whether the use of the word ‘may’ in Section 40 of the Substitute Decisions Act created a corresponding limitation period to the right to claim compensation. Justice T.D Ray concluded that if the legislature had intended to create an annual limitation period, it could have easily used language to do so. Accordingly, the only applicable limitation period was the general two-year limitation period found in the Limitations Act, which was triggered upon Mr. Wiltse’s death.

The Court also considered Ms. Armitage’s reasons for refraining from making a claim until after Mr. Wiltse died. The estate held only modest assets and Mr. Wiltse’s father had lived past 90 years old. It was possible that if Ms. Armitage had claimed compensation, Mr. Wiltse might have lived long enough to not have been able to support himself.

In its reasons, the Court also affirmed the usual practice of an attorney making claims for compensation after a grantor’s death. There was no need to provide evidence of services and expenditures, as the process for this review is found within the Substitute Decisions Act.

Thank you for reading.

Suzana Popovic-Montag

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