Dueling Power of Attorney - Hull on Estates #189
Listen to: Dueling Power of Attorney - Hull on Estates #189
This week on Hull on Estates, Sharon Davis and Natalia Angelini discuss dueling Power of Attorney based on a paper written by Jordon Atin.
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Sharon Davis - Click here for more information on Sharon Davis.
Natalia R. Nagelini - Click here for more information on Natalia Angelini.
Natalia Angelini: Hello and welcome to
Welcome to
Sharon Davis: Hi and welcome to another episode of
Natalia Angelini: And I’m Natalia Angelini.
Sharon Davis: If you want to be heard on
Natalia Angelini: Hi
Sharon Davis: You too, Natalia. Pleasure.
Natalia Angelini: Today we’re going to be talking about a really interesting subject based on a paper presented by Jordan Atin at the recent Estates Summit. And it dealt with duelling Powers of Attorney which we see more often than we’d like to in our practice. And it’s a really interesting topic for us to sort of touch on briefly for everyone today.
Sharon Davis: I think the difference really with capacity law litigation is that you’re not dealing with your standard situation where, you know, the person whose estate you’re dealing with is deceased. And in fact the person is very much alive and may have any sort of varying degrees of capacity and lots of their own ideas on how this should go, and perhaps might even disagree and fight you on the capacity.
Natalia Angelini: Right and I think this is why this kind of litigation we find to be you know more difficult than some other types of litigation. The family dynamics are at play and are really important. And you know at issue is…the core issue really is, is this Power of Attorney document a true reflection of the parent’s intention. And when you’ve got conflicting attorneyship documents, you know, there in lies the problem.
Sharon Davis: And I think really the essence is…what the Court has to decide is what is best for the person who may have capacity issues or be at a disability.
Natalia Angelini: That’s a good point and you know the difference with other types of litigation, like a Will challenge litigation, that concern isn’t top of mind for the Court. And here the best interests of the incapable person really forms the basis for the Court’s decision and has to be kept in mind when you’re dealing with opposing sides.
Sharon Davis: And I think in any situation where you’ve got a parent perhaps who might be under some disability and you’ve got a number of siblings, is whose really going to take control in that kind of situation? And you might have siblings, for example, arguing over that, each thinking that they know what’s in the best interests of Mom or Dad. And then the matter definitely has to get to Court so that that decision can be made. I think, too, when you’ve got someone coming to you who is applying to be a guardian, you really do have to make them aware of what that means. And I think it’s all well and good for a child to feel that they’ve got control of the situation and they’re looking after a parent. But what are the legal responsibilities and obligations? And I think if someone is coming to you to take on that responsibility, they should be fully aware of what that means for them.
Natalia Angelini: Right and one of the related issues is, you know, one child or loved one may want control and the flip side to that which happens again more often than we’d like, is you’ve got one or more persons excluded from the parent’s life. And you know the Substitute Decisions Act speaks to that and really requires an attorney to foster regular personal contact between the incapable person and supportive family members. And shall consult from time to time with those people. So the same sort of applies here if we’re dealing with a guardian or an attorney for an incapable person.
Sharon Davis: So when you are advising clients who might be in this situation, there are a few points that you can make that would be helpful. The first would be that the Court not only doesn’t care about the mudslinging between siblings perhaps, but views such attempts suspiciously. So be guarded about your behaviour.
Natalia Angelini: Right and again, you know, it definitely helps to remind your clients that you know as the parent is still alive, they’re best interests are going to be the focus for the Court. And that you know your client’s evidence about what Mom or Dad promised or told them is not going to be as important as their best interest.
Sharon Davis: So really you should come up with an objective, logical, reasonable and defensible management plan. I think that would impress the Court most. If you’ve got a management plan that’s acceptable to the client, even if someone else is appointed to affect the plan, I think that will bode well because on its merits, the management plan itself is reasonable.
Natalia Angelini: Right and let’s turn now maybe to some key issues that we all try to resolve in these types of fights. The first one is really, like we’ve mentioned before, is one of control. And as
Sharon Davis: I think another solution might be sometimes people just cannot come to an agreement. And perhaps proposing an independent third party as an administrator, perhaps using a trust company to implement a management plan, might help avoid the dispute.
Natalia Angelini: Right, that can certainly neutralize things. And of course, in those cases what may be a factor is you know the amount of assets that the incapable person has and whether it’s an appropriate situation for a trust company to become involved.
Sharon Davis: One other thing to look at is disclosure. And I think that suspicion is always aroused when there is a lot of secrecy involved, so building in a mechanism right from the get go for openness and disclosure of information amongst participants. It looks good and it looks reasonable to a Court. And certainly it reduces the amount of power that the attorney has in the situation.
Natalia Angelini: So that’s a good point,
Sharon Davis: So what are some of the strategies that you can employ in these sorts of situations? First of all, before things go completely off the rails perhaps a family meeting should be arranged. That can be informal. You know misperceptions, I think, of siblings’ actions or inactions or misinformation about a parent’s situation can all heat the situation up considerably. So an informal meeting might help allay some of those fears and get the real information out there. Using an agenda to keep the parties on track for such a meeting, too, is also very important.
Natalia Angelini: That’s a great idea. And I guess families maybe have some difficulty at the thought of getting together with siblings and other loved ones that maybe they’re not so crazy about at the time. But you know it certainly might be the best and most cost-effective way to resolve things. And if that doesn’t work or if it’s not feasible to set that up, you know another great mechanism that we all are familiar with is mediation. And using an independent mediator can definitely help and we find many of our cases settle at the mediation stage. And in these types of attorneyship fights where they can be quite costly and everyone is really at risk of absorbing their own costs at the end of the day…I mean obviously dependent upon the circumstances…but it seems to be more in these cases than other types of cases that is a real thing to keep in mind. Mediation is an effective way of keeping costs under control and getting a resolution sooner rather than later.
Sharon Davis: Another thing that might enter into a strategy or might affect it would be the involvement of the PGT. And certainly if the Public Guardian & Trustee has been involved before, they will become involved again. And having the support of the PGT for your client’s position is also very helpful.
Natalia Angelini: Right and again, you know, we can’t forget to have the incapable person involved. His or her wishes are going to be paramount and if he or she has a voice and wants to contribute, then that will definitely add value. So when the family and the attorney are at odds and the next step looks like it’s going to be a full-blown guardianship application, you know, which may involve getting the attorney removed and someone else appointed as guardian, there may be you know ways to avoid taking that step. And one of the best methods will possibly be forcing the attorney or getting an Order compelling the attorney to pass his or her accounts. And this can accomplish a number of objectives and
Sharon Davis: Sure, it alerts the attorney that his or her actions are being scrutinized. It forces the attorney to prove that he or she is administering the estate properly. It compels the attorney to provide information to the objector. It mandates the involvement of a third party, the Public Guardian & Trustee, in the matter. It requires a mediation in some jurisdictions where it creates an opportunity for the parties to meet and discuss the issues surrounding their parents’ financial affairs and personal care issues.
Natalia Angelini: Right and achieving that objective can be a great way to get a non-communicative attorney in line, which can really go a long way to resolving the matter and avoiding, as I said earlier, a full-blown guardianship application.
Sharon Davis: Ultimately a full-blown duel amongst siblings over a parent’s Power of Attorney is something you really want to avoid. And there are numerous ways to remove the power or control issues from the table. Hopefully have the parties focus on really what is most important, and that’s their loved one, their parent or the person who is incapable.
Natalia Angelini: And that’s a great point and just before we sign off, I wanted to highlight that it’s really easy for siblings to, you know, get entrenched in their positions and perhaps lose sight of, you know, Mom and Dad and what they really want. And you know the sibling rivalry can become the focus, when it really shouldn’t be. So hopefully some of the mechanisms we’ve talked about today can remind people about ways to neutralize those types of problems.
Sharon Davis: I think that brings us to the end of this week’s discussion. Thanks for listening. And thanks for joining me today, Natalia.
Natalia Angelini: Thanks
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