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Wednesday, October 4, 2017

Removing a joint attorney under Enduring POA is not easy

If there is one thing I hear a lot about from joint powers of attorney, it's that they want to remove the other joint person. Experience suggests that it's pretty darn tough for two (or more) siblings to agree consistently on what to do for Mom or Dad after the parent loses capacity.

As I always tell my clients, having someone removed from the role of joint attorney is not easy. This is because the courts will try to keep the parent's wishes and instructions intact, and the parent chose his or her joint attorneys voluntarily. Therefore you have to come up with some hard evidence that the joint person has done something wrong or negligent. It's not enough that the two of you disagree; as adults you're expected to figure out a workable solution.

In a recent blog post at All About Estates (one of my favourite blogs to read), Diane Vieira has posted an analysis of the recent Ontario case of White v. White. Click here to read Ms. Vieira's post. In that case, two brothers were appointed by their mother as joint attorneys under her Enduring Power of Attorney. As is often the case with siblings, they found it hard to get along. Their ideas about what was best for their mother diverged, in some cases pretty widely.

Eventually one brother went to court to have the other one removed. The court, however, refused the request. The judge said that both brothers, though their ideas were very different, were acting in good faith. Neither one had done anything that amounted to misconduct or neglect.

I can't imagine that this court application helped the two brothers get along any better. It's hard to work with someone after you've faced them across a courtroom. But for the rest of us, this case helps us to understand what the court requires when you are thinking about trying to remove a joint attorney you don't like working with. Failing to get along, in and of itself, is not enough.

To read the case of White v. White, click here.

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