An Ontario case Crane v Metzger 2018 ONSC 5382 refused an application to revoke a power of attorney of the applicant’s mother who had vascular dementia and had been determined to be incompetent.
The court followed the Ontario decision of Teffer v Schaefers (2008) 93 OR (3d) 447:
“The courts of generally taken the view that a written power of attorney executed by the donor at a time when he or she was apparently of sound mind is simpler to deal with and gives the duly more flexibility in dealing on behalf of the donor. Also favoring a continuation of the appointment respects the wishes of the person who made the grant.
A preference expressed by a person in anticipation of becoming mentally incompetent is particularly important and should be respected unless this would clearly not be in the person’s best interests. The expression of such a preference might take the form of statements to friends and relatives, and arguably is implicit in the grant of a general power of attorney prior to becoming incompetent.
The court outlined two considerations in determining whether to terminate a power of attorney:
1) There must be strong and compelling evidence of misconduct or neglect on the part of the attorney before court should ignore the clear wishes of the donor; and
2) The court must be of the opinion that the best interest of an incapable person are not being served by the attorney.
The applicant had brought an application for an order declaring her mother incapable of managing her property, appointing herself as the sole permanent guardian, and removing a sibling as attorney.
The court dismissed the application stating that the onus was on the applicant to establish that the order was warranted, and her conduct made her position untenable, particularly by reason of the fact that she withdrew $10,000 from her mother’s bank account despite knowing that her mother was incompetent, and provided no explanation for why she did this are why she thought that she had the authority to do so.
The attorney had also secured a passport for her mother under false pretenses, namely that she was mentally competent, when she was in fact not,thus causing Passport Canada to revoke the passport.