With a new year comes new opportunities for the courts to develop and clarify the law, in the realm of estates law and otherwise. One of the first estates decisions of this new year, Re Andriesky Estate, 2022 ONSC 242, involves a potential conflict of interest between the roles of an attorney for property and/or personal care and that of an estate trustee.

In this case, the deceased had previously appointed two individuals as her co-attorneys for property, and one of the individuals as her exclusive attorney for personal care. As the attorney for personal care is a retired nurse with 39 years of professional experience, she sought compensation at a rate commensurate with her seniority. The deceased’s Power of Attorney for Personal Care did not set out a provision for compensation, necessitating the Court’s approval of the compensation sought in this matter.

The attorneys, therefore, made an application to the Court to pass their accounts for the relevant period for which compensation was being sought. To complicate matters, their application was commenced in April 2021, but the deceased passed away in September 2021. As they were named co-estate trustees, but not residual beneficiaries of the estate, their claims for compensation now conflicted with their roles as estate trustees.

Although the sole residual beneficiary (Queens University) consented to the draft Judgment approving the attorneys’ passing of accounts and consequent compensation, Justice Mew decided to request further material in support of an amended application. The Judge noted that, “the court has an overarching responsibility to supervise the compensation of individuals acting under powers of attorney to ensure that it is fair and reasonable in all of the circumstances.” In light of the amount of compensation sought for personal care, in particular, Justice Mew noted that the Court needed more information as to the specific time when the deceased became legally incapable.

This stresses the importance of keeping thorough records of one’s actions as an attorney for property and/or personal care, and understanding the duties and risks of taking on such a role.

Thanks for reading!

Fred Tonelli