March 3, 2026

By Mark Mikulasik

 

A power of attorney is, as its name implies, a powerful document. As such, it must be used with care and not abused.

THE ISSUE

What should happen when you feel that someone is misusing a power of attorney granted by your loved one?

THE CASE

The remedy when you believe  power of attorney is being abused is an application for a declaration that the power is invalid, or set aside, and that a guardian be appointed instead.

Because a proper power reflects the wishes of the grantor, courts are reluctant to set them aside. Bennett v. Bennett  is a good recent example.

The facts are a bit complex. We will try to boil them down to the basics.

The grantor, Carl Bennet, was married to the applicant, Adassa, for 49 years at the time she applied to have the Ontario power grated in favour of their son, Donnovan, set aside. Carl split his living time between Jamaica and Toronto. When in Toronto, carl often lived with his daughter Makeshia. Based on that, Donnovan claimed that his parents were separated and estranged.

In 2023, Donnovan removed Carl from Makeshia’s home. He gave conflicting evidence about why and how this came to pass. There was also evidence that contradicted Donnovan’s claim that he had had a close relationship with Carl.

Shortly after this removal, Donnovan took Carl to a lawyer to have the contested power of attorney executed. There was no evidence from that lawyer as to the circumstances under which the power was signed. Donnovan had never previously been involved in Carl’s care of finances.

However, mere weeks after the signing, Donnovan told the police that Carl had dementia and required around the clock care.

A couple of months later, a home care assessment described Carl as “incapable”.

A formal capacity assessment was not done until 2025. That assessment concluded that Carl had  been suffering “from a significant impairment for more than 18 months”- in other words, from before he signed the power.

It is up to the person challenging the validity of the power to prove the grantor lacked capacity.

In the absence of direct evidence as to capacity at the date of signing, the judge applied factors commonly applied to determine the validity of wills:

1. 1. The extent of physical and mental impairment of the testator around the time the will was signed;
   2. Whether the will in question constitutes a significant change from the former will;
   3. Whether the will in question generally seems to make testamentary sense (which for powers of attorney can be seen to ask whether the power of attorney in question makes sense regarding the person’s best interests);
   4. The factual circumstances surrounding the execution of the will; and
   5. Whether any beneficiary was instrumental in the preparation of the will (which for powers of attorney can be seen to ask whether the attorney was instrumental in the preparation of the powers of attorney).

 

Based on these factors, the judge concluded that the power was signed in suspicious circumstances, and that there was undue influence.

That was sufficient to remove Donnovan as the attorney.

The judge went on however, to also conclude that Donnovan had not complied with the requirements of the Substitute Decisions Act and had breached his fiduciary duty to Carl. He cites many facts in support of this, particularly a lack of proper financial accounting.

Adessa was appointed Carl’s guardian. Her plan was return Carl to Jamaica, where Carl has family, and a doctor. The cost of his care would be much more modest.

TAKEAWAYS

• Providing for our future needs for care is important and should be done early – it can easily be updated as long as you have capacity.
• Creating a valid power of attorney may prevent or reduce family disputes about your future.
• Waiting until care is needed may create unneeded issues as to capacity.
• If a power is abused, it may be set aside and a guardian appointed.
• Setting aside an invalid power of attorney is complex and costly.
• Getting it right is the best move to make.

 

WHAT WEILERS LLP CAN DO TO HELP YOU

Whether you are planning ahead and want Powers of Attorney or are a relative of someone who you fear is not being properly represented under their POA a Weilers LLP estate planning lawyer could help. The cost of POAs is modest, and even more advantageous when combined with a will.

We can also advise attorneys on their obligations. Being an attorney is just as serious as being an estate trustee.

If a court application is required, our litigation team has the experience to manage the cost and achieve desirable results.

Give us a call and see if we are the right lawyers for you.