In Re Schaefers Estate, 2008 CanLII 46929 (ON SC), the Ontario Superior Court of Justice set out a two-part test that must be met before an attorney for property appointed under a valid power of attorney is removed:

[24]    The jurisprudence establishes that two issues require consideration. First, there must be strong and compelling evidence of misconduct or neglect on the part of the attorney before a court should ignore the clear wishes of the donor. With respect to this issue, the evidence has to establish that the donor was capable of granting a proper power of attorney.

[25]    The second issue relates to whether the court is of the opinion that the best interest of an incapable person are being served by the attorney.

As the ONSC explained in Glen v Brennan, 2006 CanLII 343 (ON SC), courts are generally reluctant to use their powers under s 12(1)(c) and s 22 of the Substitute Decisions Act to remove an attorney for property and appoint a guardian in their place:

[9]      The courts have generally taken the view that a written power of attorney executed by the donor at a time when he was apparently of sound mind (and there is nothing in the material to suggest otherwise) is simpler to deal with and gives the donee more flexibility in dealing on behalf of the donor. Also favouring a continuation of the appointment respects the wishes of the person who made the grant.

In the recent case of Public Guardian and Trustee v Hara, 2025 ONSC 145 (CanLII), the ONSC removed the incapable’s brother as his attorney for property, and appointed the PGT as the incapable’s permanent guardian for property in his place.

The court found that the brother’s conduct warranted his removal, such conduct including the misappropriation of hundreds of thousands of dollars of the incapable’s money, mismanagement of the incapable’s money resulting in months’ worth of missed payments, failure to file the incapable’s tax returns, and unnecessary expenditures on the incapable’s condominium property.

Although the brother was willing to relinquish his role as attorney for property from the outset, he argued that a relative, and not the PGT, ought to take his place. However, no relatives actively sought to step into the role, which led the court to appoint the PGT.

Thank you for reading and have a great day.

James