Section 37(1) of the Substitute Decisions Act imposes an obligation upon an Attorney for Property acting under a Power of Attorney for Property to continue to support the grantor’s dependants, with section 37(2) noting the “accustomed standard of living” of the dependant is to be taken into account when determining the appropriate amount of support. But what happens if there is a disagreement between an Attorney for Property and the alleged dependant regarding their support. Does the Substitute Decision Act authorize the alleged dependant to obtain an order requiring their support? What does “dependant” even mean within the confines of the Substitute Decisions Act?
The Substitute Decisions Act defines “dependant” as “a person to whom another has an obligation to provide support.” [emphasis added] The use of the present-tense term “obligation” is perhaps notable, as it suggests a legal “obligation” must already be in place for a person to be considered a dependant on whose behalf an Attorney for Property may be required to pay support under section 37(1). This is potentially in contrast to the definition of “dependant” under statutes like the Succession Law Reform Act, which allows new individuals to qualify as a “dependant” so long as the deceased individual was providing them “support” immediately prior to their death.
Unlike the Succession Law Reform Act and the Family Law Act which contain a framework for an alleged dependant to obtain a new order for support, the Substitute Decisions Act does not contain similar provisions allowing a new support order to be paid, instead simply directing the Attorney for Property to support the “dependants” of the grantor. As we have already established that in order to qualify as a “dependant” under the Substitute Decisions Act there must already be an “obligation” to support the dependant, the requirement for a dependant to already have a legal obligation for support in place before they can qualify as a dependant for whom the Attorney for Property must provide support under section 37(1) creates a potential catch-22 for the alleged dependant, as to have standing under the Substitute Decisions Act to require the Attorney for Property to support you as a dependant you must already have an “obligation” in place to be paid support, thereby potentially excluding any individuals who do not yet have a support obligation in place.
As a result of the potential requirement to already have a support “obligation” in place prior to being able to qualify as a dependant under the Substitute Decisions Act, together with the lack of framework under which an alleged dependant who does not yet have a support obligation in place can obtain an order providing for their support under the Substitute Decisions Act, it is likely that any alleged dependant would need to obtain an order under a different statute (i.e. the Family Law Act) before having standing under section 37(1) to require the Attorney to pay them support. Upon being granted the obligation for support under the separate statute the dependant would then have standing as a “dependant” under the Substitute Decisions Act, and could, for example, bring an Application for directions under section 39(1) of the Substitute Decisions Act regarding their support (or the lack thereof) from the Attorney for Property. But that will have to be a different blog for a different day.
Thank you for reading.