Aug 8, 2025
This blog is part 2 of a series which started with this one: “Re-thinking Power of Attorney Litigation.”
My first modest suggestion for power of attorney (“POA”) litigation is to fully explore clients’ assumptions about the rights and powers of POAs before initiating litigation.
If the aggrieved party uses words like “power”, “in charge” and “control” when describing the role of a POA, rather than “duty”, “responsibility”, “accountability” and “service”, it is a sign that the person who wants the job doesn’t fully understand the role.
For example, I am shocked by the number of children who believe that as soon as the family home is sold and a parent enters a care setting, that is the time to divide up the house sale proceeds among themselves. They mistakenly think that the POA gets to decide how and when to divide up the parent’s money. Not so. The incapable person’s money must be carefully managed solely for the incapable person’s benefit during his or her lifetime.
Yes, that is true even if the nursing home costs will not exceed the incapable person’s income. Yes, that is true even if the children are all counting on their inheritance as a pathway to home ownership and would like to receive at least part of their inheritance early. Yes, that is true even if the parent’s dementia has progressed to the point that he or she would not even miss the house sale proceeds.
Another common reason litigants want to be “in charge” is the mistaken belief that a POA can make unilateral decisions without talking to anyone else. POA litigation usually involves high conflict families. The person who wants to be POA or Guardian of Property needs to understand that, if successful, there will be a duty to consult with supportive family members and friends of the incapable person, including the despised sibling.
The Substitute Decisions Act uses the word “consult” to describe this duty on substitute decision makers. This is different from informing after-the-fact. To do the job of POA correctly, the POA will need to share all information relevant to a substitute decision with the incapable person’s family members, then listen to their feedback and opinions before implementing a substitute decision. If you are unable or unwilling to communicate effectively with your immediate family members, you are not qualified for the job.
Before initiating POA litigation, I often refer clients to this helpful summary of the duties and obligations of Guardians of Property on the Public Guardian and Trustee’s website [1].
It is important to fully explore how taking on this 24/7 responsibility will impact the POA’s life. Vacations could be interrupted by a call from the nursing home. POAs will face practical problems like banks that won’t provide online access to bank accounts and paid caregivers who don’t work out. Tax returns to be filed, forms to be filled out, doctor and dentist appointments to be tracked, medications to be managed. The POA will ultimately be responsible to account to the beneficiaries of the incapable person’s estate, and possibly the Court, about every transaction during the POA period. A lost receipt could become a personal liability.
These duties and obligations should be fully explored before heading down the destructive and expensive path of POA litigation so that the client has eyes wide open about what “winning” entails.
[1] Most of the duties imposed on Guardians of Property are also applicable to fiduciaries acting under a power of attorney, the primary distinction being that a Guardian of Property will be obligated to act in accordance with a Management Plan and will have to pass accounts to the Public Guardian and Trustee by a particular deadline.
Angela Casey
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Dec 17, 2024
It seems that the past few months have been full of guardianship applications, each with their own nuances and challenges. After a brief moment of respite, I thought this would be a useful occasion to document some of the things I have learned along the way. Below are some tips “from the trenches”:
1. Give your Client a Realistic Timeline
Guardianship applications do not follow the typical roadmap of litigation, even if they are uncontested. Depending on your client, he or she may have little to no information about the alleged incapable person’s finances or care needs. This means that you need to build in more time than usual to make inquiries with banks, healthcare providers, and family members.
And then there are all of the nuts and bolts of putting together an application record for the court, some of which can be deceptively cumbersome or easy to overlook. Take, for example, the requirement to include a statement by the applicant indicating that he or she has informed the person alleged to be incapable of the nature of the application as well as their right to oppose it. How will your client communicate this? What happens if the incapable person refuses to meet with your client? Or, consider the requirement to serve the incapable person with the application and to allow them to participate at the court hearing. How will you communicate the Zoom coordinates to the incapable person if the hearing takes place virtually?
The short of it is that you need to be clear with your client that guardianship applications take time, and it is prudent to have a work plan from the start setting out all the steps that need to take place and who will be responsible for each step.
2. If Retaining a Capacity Assessor, Be as Comprehensive as Possible in your Retainer Letter
I have found that the best practice for retaining a capacity assessor is to be as forthright as possible, and to document your retainer in a letter. When retaining a capacity assessor, be sure to:
- Make it clear that you do not represent the alleged incapable person, only the person(s) applying to be his or her guardian;
- Set out the background leading to the assessment, making sure to frame things neutrally;
- Identify any known conflicts or outstanding pieces of litigation;
- Specify what type(s) of assessment(s) you are retaining the assessor to conduct, and provide the legal criteria associated with each type of assessment;
- Provide collateral information about the alleged incapable person’s care needs and property; and
- Remind the assessor that your client(s) should not be present when the assessment takes place.
This list is certainly not comprehensive, but can provide a helpful start.
3. Ensure the Management and Guardianship Plans are Clear and Flexible
One of the best parts about reviewing applications to pass accounts is that you get to see all sorts of guardianship and management plans. Over time, I have learned that some simple additions to a plan can make a world of a difference in allowing a guardian to effectively manage another person’s assets without being put in an impossible position where they cannot comply with the plan.
The following are some of the notable additions to plans that I have seen or used in guardianship applications:
- Index all amounts to account for inflation;
- Include an annual contingency fund, in case expenses end up being higher than initially anticipated;
- Include a reallocation clause, in case one category of expenses exceeds the others in a given year;
- Build in the cost of future passings, including accounting and legal fees; and
- Add in discretionary language, where reasonable and appropriate.
4. Give Your Client A Roadmap for the Future
Once you have your guardianship judgment in hand, it may be tempting to think that your job is complete. The reality is that the real work has just begun. The point of bringing a guardianship application is not to get a piece of paper, but to ensure that your clients have the necessary tools to effectively manage another person’s property or care. The most common pitfall I see when reviewing guardianship accounts is that the applicant has not received adequate advice about how to comply with the terms of the judgment appointing them.
I recently got into the practice of preparing a detailed reporting letter following a guardianship appointment, explaining the terms of the order, setting out the guardian’s duties and obligations, and providing some examples of common situations they can expect to navigate. Another important consideration is the application to pass accounts, which most guardians of property will be required to commence within the first few years of their appointment. Working backwards from this deadline, you can give your clients helpful information about how to keep records, how to manage or consolidate bank accounts, when to begin preparing the accounts in court format, and when to commence the necessary court application. To this end, I will often give clients customizable spreadsheets so that they can track their transactions on a monthly basis in preparation for the passing.
The role of a court-appointed guardian is to step into the shoes of another person, to protect their welfare and best interests. For this reason, lawyers should take special care to ensure that clients are fully aware of the scope of this responsibility and are well-equipped to carry out the role with honesty, integrity, and trust.
Adam Giancola
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
