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POWER OF ATTORNEY - Capacity - Determining incapacity of grantor

Tuesday, April 23, 2019 @ 9:37 AM  


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Appeal by the son from a decision that found the 2010 enduring power of attorney granted by his 85-year-old mother to the daughter remained in full force and effect and that the mother lacked capacity to revoke the power of attorney or to grant a power of attorney to the son. Appeal by the mother from the appointment of the daughter as her personal and property guardian. The mother began suffering from dementia in 2016 and began living with the daughter in 2017. In 2017, the mother was diagnosed with advanced dementia. The son removed the mother from the daughter’s home on false pretenses. He had the mother execute a power of attorney in his favour. The Chambers judge refused to admit medical opinions attached to the son’s affidavit that indicated the mother had capacity when she executed the 2017 power of attorney. He awarded the daughter costs of $10,000. The daughter acknowledged the Chambers judge erred in appointing her the mother’s property guardian as she had not sought property guardianship and in failing to specify the daughter’s powers as personal guardian.

HELD: Appeal by son dismissed; appeal by mother allowed in part. The Chambers judge did not err by not directing a trial on the issues, which the son had not sought at the hearing. He did not err by excluding the medical evidence tendered by the son, which was inadmissible hearsay. He did not err in determining the mother lacked capacity and in determining the relevant time to assess her capacity. The only relevant medical evidence of the mother’s capacity indicated she suffered from advanced dementia. The Chambers judge was clearly alive to the broader concept of capacity as defined in the Powers of Attorney Act. He did not err in determining that the definition of capacity based on the provisions of the Act went well beyond a mere basic understanding of the nature and effect of the document at the time of signing. The Chambers judge appropriately exercised his discretion in awarding solicitor-client costs by taking into account the son’s conduct leading to the litigation as part of the factual matrix that justified the award. It was appropriate for the appellate court to exercise its jurisdiction under s. 12(1)(d) of The Court of Appeal Act to make the decision the Chambers judge should have made to enumerate the daughter’s powers.

Hood v. Hrycyna, [2019] S.J. No. 105, Saskatchewan Court of Appeal, R.K. Ottenbreit, P.A. Whitmore and R. Leurer JJ.A., March 28, 2019. Digest No. TLD-April222019003