• I’ve Got the Power! But Do I Have to Consult Others? The Duty of an Attorney to Consult under the Substitute Decisions Act
  • December 27, 2012 | Author: Ambie K. Edgar-Chana
  • Law Firm: Cassels Brock & Blackwell LLP - Toronto Office
  • In today’s world, we are always trying to be prepared - we check flights the day before our trip, and we start putting money aside into an RESP before our kids are potty trained. Similarly, we prepare powers of attorney to ensure that in the event we become incapacitated, we have persons of our choosing to be our decision-makers for the management of our property and our personal care.

    Despite this planning, the persons we appoint may still find their hands tied in performing their duties as an attorney. The appointment of attorneys for the management of property and personal care, and their duties and responsibilities, are governed by the Substitute Decisions Act (Ontario) (the “SDA”). Under the SDA, every person who is appointed as an attorney must abide by certain duties required of them.1

    As many attorneys for property will know, the SDA imposes a fiduciary duty on the named attorney to carry out the attorney’s duties under the continuing power of attorney diligently, in good faith and for the benefit of the incapable person only. As a fiduciary, an attorney for property also has an obligation to account for the management of the incapable person’s property.

    A lesser known duty of an attorney for property and personal care is the duty to consult, from time to time, with “supportive” family members and friends of the incapable person who are in regular personal contact with the incapable person, and the persons from whom the incapable person receives personal care.

    On the face of it, this duty to consult may seem straightforward. In reality, however, this duty can impose onerous and time-consuming restraints on the attorney. This is especially so when the attorney and the so called “supportive” family members or friends of the donor are hostile towards the attorney. Powers of attorney provide the named attorney the authority to make a wide range of decisions on behalf of the incapable person. These decisions can range from monotonous day to day decisions, such as daily meal planning or paying a monthly utility bill, to life changing decisions, such as selling a major asset of the grantor or consenting to a risky medical procedure. Accordingly, attorneys are faced with critical legal questions, such as, “Am I obligated to consult with the grantor’s family and friends on each decision I make?”, “With whom, specifically, must I consult?” and “What are the limits, if any, on this duty?

    How is the Duty to Consult Interpreted and Enforced by the Courts?

    Ontario common law requires that the duty of an attorney to consult be interpreted in light of what is in the best interests of the incapable person, echoing the attorney’s fiduciary obligation and the good faith requirement in the SDA. Accordingly, where animosity, conflict or disharmony exists between the family members/friends of the donor and the attorney, courts may relax the consultation requirement where they feel consultation would only provoke further conflict and/or delay actions or decisions of the attorney. The courts have found that misconduct or poor behaviour on the part of a family member (such as creating conflict or arguments and thereby delaying the attorney’s ability to act) can disentitle that individual family member’s or friend’s right to be consulted on decisions regarding the property or personal care of the incapable person. Such family members and friends may no longer be considered to be “supportive”, and thus fall outside of the scope of the SDA requirements.

    Furthermore, the duty to consult under the SDA appears not to require the attorney to follow the views of friends and family obtained from such consultations. It is the attorney alone who has the power to make decisions on behalf of the incapable person. Consequently, duty to ‘consult’ with supportive persons has been interpreted by the courts as more akin to a duty to inform on the larger decisions relating to the person and property of the grantor.

    So What Does This Mean for the Attorney?

    An attorney can gain insight into the incapable person’s wishes by consulting with supportive family members/friends and the attorney can use this information to aid him or her in the decision-making process. The idea that such consultations may be beneficial to the incapable person is likely the thrust behind this little known SDA requirement. However, where such consultations are creating undue delay, stress or conflict for the attorney, this duty may be relaxed by the courts, viewing it as not in the best interests of the incapable person.

    Attorneys acting under a power of attorney must be aware of all their duties and their requirements under the SDA and otherwise, as well as the scope thereof. They must always comply with what is required by them at law to avoid persecution and/or removal. The court’s interpretation of these duties, however, seems to be largely fact specific and varies in application. Consequently, attorneys should be mindful of these duties and consult their legal advisors to discuss the nature and scope of their duties. An attorney should always consult with their legal advisors before dispensing with the duty to consult.


    1 Under the SDA, the duties required of an attorney are substantially similar to the duties required of court appointed guardians of property or court appointed guardians of a person. The comments in this article also apply generally to court appointed guardians, but court appointed guardians should consult with their legal counsel for a more fulsome understanding of their responsibilities and duties, under the SDA.