Simon's Legal Resources

Torts - Negligence - POA 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 deceased 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.