Apr 23, 2026
As a mediator, I have seen the same dynamic play out in many power of attorney disputes. Sibling A swears that the parent suffering from dementia doesn’t trust Sibling B, and wants Sibling A to act as POA for property and personal care. Sibling B tells me the opposite: the parent is highly mistrustful of Sibling A and insists that Sibling B is the only one that can be trusted to make substitute decisions about finances and health care.
Most of the time, I believe both of them.
I try very hard in our caucus meetings to ask questions aimed at encouraging each of the parties to explore whether both things might be true. I am surprised at how closed litigants are to the possibility that Alzheimer’s disease is the true villain in the dispute.
According to the Alzheimer’s Association, “a person with Alzheimer’s may become suspicious of those around them, even accusing others of theft, infidelity or other improper behaviour”. [1] Yet, in power of attorney disputes, siblings are often unwilling to consider that the parent’s suspicions about their sibling might be unfounded.
Another feature of dementia is confabulation. It is a natural coping mechanism which happens when a dementia patient attempts to fill in missing gaps in their memory with things that are untrue. Rather than confronting the painful truth that the patient has no memory of that meeting with the lawyer or that discussion with Child A, the diseased brain protects the patient by supplying false memories.
Alzheimer’s disease lies to the people suffering from it. Dementia patients commonly experience anosognosia – the inability to recognize their own memory and cognitive deficits.
Logic would dictate that when a parent suffers from Alzheimer’s, and says two different things to two different people, the most likely explanation is that the disease has rendered the parent an unreliable narrator. And yet, so many siblings caught up in POA disputes immediately dismiss the disease as a possible contributor to the dispute. They confidently conclude that the only possible explanation is that their “evil sibling” is a liar.
Perhaps it is less painful to believe their sibling is lying (particularly a sibling they never got along with) than it is to accept that the disease has already progressed to the point that the parent’s words cannot be relied upon anymore. When a child has spent a lifetime looking to a parent for support, advice, care and judgment, it is difficult to accept that certain aspects of the relationship are now gone.
Many years of litigating and mediating these disputes have convinced me that litigation is a terrible way of resolving them. Once litigants reach the mediation stage, they have spent tens of thousands of dollars on legal fees, making them even more entrenched in the righteousness of their position. Too often the stumbling block to settling these cases is the sunk costs of the legal fees already spent.
I can’t help but wonder: What if the siblings had pursued mediation from the outset instead of going to court first? What if they had consulted dementia experts first before going to legal experts? What if they had focused on dementia as the enemy instead of their sibling?
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.
[1] https://www.alz.org/
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.
Oct 31, 2024
I begin with a rant. Power of attorney litigation is the worst. I am not talking here about the kind of litigation where there is an actual financial predator who has obtained a power of attorney through fraud and stolen money from a vulnerable person. That is properly a matter for the courts and the kind of case I derive great satisfaction in pursuing.
I am talking about the kind of power of attorney dispute where the sole issue is whether Johnny or Jane should act as attorney for property and personal care for their parent.
The usual fact pattern begins after the first parent dies. In the aftermath of Dad’s death, the entire family realizes how much Dad’s involvement had been masking Mom’s dementia symptoms. It becomes immediately apparent that Mom is struggling on her own – burning things on the stove, losing her license after a minor car accident, missing appointments, and having trouble with word finding.
Jane is the Responsible One. Jane was always the straight-A student, the rule follower, and the one her parents leaned on most in their senior years. Jane has a Big Job and a busy life with all the typical Type A supermom activities. Naturally, when her parents did their estate and capacity planning 20 years ago while both were well, Jane was selected as the attorney for personal care and finances.
Johnny, by contrast, was not successful in any traditional sense. He doesn’t have regular work, went through an ugly divorce such that he has no full-time parenting responsibilities, and suffered from a substance use disorder from which he has recovered. He has no financial security and does not own a home. As mothers do, Mom adores Johnny. Jane and Johnny do not get along.
Johnny moves in with Mom, which works for both of them. Mom spent the last 40 years of her life making this house exactly the home she wanted. Each knick knack is precious to her. She loves having Johnny around. Jane, however, sees Johnny’s care as substandard. In her view, Mom is not getting bathed or showered enough, Mom is spending too much time watching TV and not enough time doing enriching word puzzles. Jane read about the optimal Alzheimer’s diet and laments the processed food Mom and Johnny seem to be relying on. Mom’s nails and hair, which had always been immaculate, are dirty and unkempt.
As the attorney for personal care and property, Jane decides it would be best for Mom to move to a state-of-the-art memory care facility. Mom is happy living in her home with Johnny and doesn’t want to go. Jane believes that Mom is just not capable of making that decision anymore and ignores Mom’s pleas. Desperate, Mom sees a lawyer (she has no license, so Johnny takes her there) and signs new powers of attorney naming Johnny as her new attorney for personal care and property.
Jane lawyers up. Her lawyer tells her that because the new power of attorney documents were prepared when mom had dementia, a Court could find them invalid and then she would go back to being in charge. Johnny also gets a lawyer. Eventually, a judge also appoints a section 3 lawyer for Mom.
From Mom’s perspective, things become a nightmare. She reads pages of deeply embarrassing affidavit content drafted by Jane’s lawyer, including anecdotal evidence about the time that she couldn’t make it to the bathroom on time and had an accident at church, another about the traumatizing time she got lost. The affidavit evidence contains photos to show how dirty her hair is, how long her toenails are, and the spoiled food in her fridge. She feels an overwhelming sense of shame and embarrassment. She feels like every visit from Jane over the last few months was a trick designed to capture embarrassing video and photo evidence for Jane’s court case against her. The next time Jane comes to visit, Mom tells Johnny not to let Jane in.
The legal fees in these types of cases are breathtaking because lawyers take over all communications between Johnny and Jane, who no longer speak. Every petty grievance or detail of Mom’s life is aired out through letter exchanges between lawyers charging hundreds of dollars per hour.
For the price Jane is paying her lawyers, she could have paid for Mom to have weekly manicures and pedicures, twice-weekly blow-outs, a meal delivery service, weekly visits to the spa, and an Alzheimer’s day program a couple of times a week. But instead, Jane is obsessed with proving that her brother is a deadbeat getting “free rent” by staying in Mom’s house with her. Jane wants to be back in charge, and she wants a judge to confirm that she is the Good Daughter and Johnny is a Very Bad Son. By the point that they get to mediation, both sides have incurred tens of thousands of dollars in legal fees.
The legal fees then become the impediment to resolving the legal dispute. I have mediated many of these cases where the parties are able to resolve all the important issues – where Mom will live, what type of caregiving supports she will have – but the sole remaining issue is each side’s belief that the other side should pay legal costs. Having settled, it would be difficult to get a judge to decide the costs issue independently because the judge doesn’t have context to award costs to one side or the other without delving into all the issues that are now settled. In many cases, the fight continues and more costs are incurred just because neither side will cave or compromise on costs. And in a sad number of cases, the parent dies while the litigation is still unresolved.
Estate and capacity litigators, we need to find better ways of dealing with these issues. In my experience as section 3 counsel for many “Moms” in these cases, not once has the parent said to me, “I am so glad Jane brought this court case to get me the care I need.” Universally, the parent caught in the middle of the dispute says, “I love both my children equally. I want them to get along and I want this litigation to end.” To them, the litigation feels “stupid” (a direct quote from a section 3 client), embarrassing, damaging and incredibly stressful. In my next series of blogs, I am going to share some ideas about how we might change our approach to these kinds of disputes.
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.
