Previous articles have discussed powers of attorney and guardianships and the duties and obligations of attorneys and guardians. But what can be done when a family member of the incapable person feels that the guardian or attorney is not acting appropriately?
Occasionally, supportive friends or family members may have concerns about the actions taken by an attorney or guardian and may seek to have that person removed or replaced by the court. While the standard required to remove an attorney acting under a power of attorney is well established, case law on the standard required to remove a court appointed guardian is scarce.
Before a court will order the removal of an attorney acting under a power of attorney the applicants seeking to have the attorney removed must present “strong and compelling evidence of misconduct or neglect on the part of the donee duly appointed under an enduring power of attorney before a court should ignore the clear wishes of the donor and terminate such power of attorney.”[1]
The case law on this issue relates the requirement for strong and compelling evidence of misconduct or neglect on the part of the attorney to the fact that that person was specifically chosen by the incapable person, while capable, to act on their behalf. The courts are reluctant to interfere with the decision the person made while capable by removing an attorney without clear evidence that removal is necessary.
However, a court appointed guardian is not someone chosen by the incapable person, while capable, but is rather an individual appointed by the court. Most often, a court appointed guardian volunteers for the role and seeks to be appointed as the guardian of the incapable person on their own initiative. The rationale of respecting the wishes of the incapable person behind the requirement for clear and compelling evidence of misconduct or neglect prior to removal arguably does not arise in these circumstances. Further, the health of the incapable person often makes it difficult to ascertain their wishes at the time the guardian is appointed.
In contrast to cases dealing with the removal of a power of attorney, cases dealing with competing applications for guardianship or replacing a guardian have appeared not to adopt this test. Rather, the overarching consideration in these cases is what is in the best interests of the incapable person.[2]
The Ontario Superior Court of Justice has recently clarified the law with respect to the standard of evidence required to remove a court appointed guardian, finding that the stringent test applicable to the removal of an attorney has no application to the case of removing a court appointed guardian.[3] Instead, the court considered the evidence to determine the outcome in the best interests of the incapable person.
[1] See for example Glen v. Brennan, 2006 CanLII 343 (Ont. S.C.).
[2] See for example Consiglio v. Consiglio and D’Urzo v. D’Urzo
[3] Maharaj v. Maharaj, 2015 ONSC 5775