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Mental Health - Power of Attorney. McNeill v. Phillips
In McNeill v. Phillips (Ont CA, 2026) the Ontario Court of Appeal considered whether a POA attorney owed a negligence 'duty of care' to the daughter of the POA donor:[3] The respondent was married to the appellant’s mother. He is not the appellant’s father. The claim arises out of events involving the mother’s illness and death in December 2024. The appellant was in her late 50s when her mother died. The material facts pled in the statement of claim are that the respondent failed to inform the appellant of her mother’s hospitalizations and death, did not allow the appellant to meet her mother in hospital once the mother became incapacitated, and that he obstructed her from attending a viewing after her mother’s death by refusing to change the date to a date the appellant could attend. The respondent was the mother’s power of attorney for personal care.
[4] The appellant framed her claim in negligence, pleading that the respondent owed her a duty of care to inform her of her mother’s illness and death, and that he breached the duty by failing to notify her and by refusing to change the date of the viewing.
The motion judge’s reasons
[5] The motion judge found that there was no recognized duty of care owed by the respondent to the appellant in the circumstances pleaded in the claim. We do not summarize all of her reasons. In particular, she found that the law recognizes no duty of care on the part of the respondent, as power of attorney, to inform the appellant of her mother’s hospitalization and death. Once the power of attorney was invoked, the respondent’s sole duty as power of attorney was to the grantor – his wife and the appellant’s mother – to follow the directives in the power of attorney and the law as set out in the Substitute Decisions Act, 1992, S.O. 1992, c. 30, and the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A. The law does not require a person acting under a power of attorney to inform family members of steps taken pursuant to that power or of the medical status of the grantor. The motion judge struck the claim as disclosing no reasonable cause of action. She denied leave to amend because there was no tenable claim arising from the events pleaded in the claim. . Wright v. Wright
In Wright v. Wright (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, here brought against the dismissal (as unenforceable) of an application "seeking enforcement of the Agreement or alternative relief", where the '(Property Partnership) agreement' ostensibly provided the appellants' with an "an option to purchase a residential property".
The court considered fiduciary duties, here in a power of attorney context:[95] In my view, the application judge erred in principle in concluding that Tamara was in a conflict of interest as a result of the 2019 POA. He failed to consider the limited scope of the 2019 POA and the duties owed by an attorney when a grantor is of sound mind.
[96] The legal obligation of an attorney varies based on the grantor’s capacity. Where a grantor of a POA is mentally capable, the relationship between the grantor and attorney is similar to one of agency: Richardson (Estate Trustee of) v. Mew, 2009 ONCA 403, 96 O.R. (3d) 65, at para. 48, citing Banton v. Banton (1998), 1998 CanLII 14926 (ON SC), 164 D.L.R. (4th) 176 (Ont. Gen. Div.), at p. 239. In Banton, at p. 239, the court explained that, where a grantor has the mental capacity to deal with their property, the role of the attorney is akin to an agent. In these circumstances, even where the power conferred is general, the attorney’s primary responsibility will be to carry out the grantor’s instructions: Banton, at p. 239. Such an attorney owes fiduciary duties to the grantor, but they “pale in comparison” to the fiduciary duties owed by an attorney holding a continuing power over a grantor who has lost capacity to manage their property: Banton, at p. 239.
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[99] Furthermore, as already noted above, Karin received timely and independent legal advice prior to signing the Agreement. In these circumstances, to the extent that Tamara owed Karin a fiduciary duty based on the 2006 or 2019 POAs, that duty did not preclude an enforceable agreement between them. Even if Tamara was acting under either of the POAs and derived a benefit from doing so, it was with Karin’s full knowledge and consent, as informed by the independent legal advice she received: Richardson (Estate Trustee of), at para. 49.
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