The recent Superior Court decision in McNutt v. Draycott illustrates what
can happen when an elderly person nominates a number of his adult
children as his attorneys for personal care and a disagreement
arises among them as to what is in their father's best
In this case, Peter Draycott was a 94 year old man living in his
own home with two of his children, Geoffrey and Yolis. His other
two children, Daphne and Anthea, did not live with him. They were
unhappy with the quality of care that he was receiving from
Geoffrey and Yolis. They wanted Peter to be placed in a long term
care facility. Geoffrey and Yolis disagreed.
All four adult children were named as attorneys in Peter's
power of attorney for personal care.
Daphne applied to the court for an order appointing her as
Peter's guardian, thereby terminating the power of attorney and
giving her the right to move her father to a care home.
In her application, Daphne alleged that Peter was suffering from
neglect and abuse while under the care of Geoffrey and Yolis.
Daphne alleged that Geoffrey had no assets and was not working, and
was taking advantage of Peter by living in his house rent-free. She
and Anthea insisted that he would be better off in a long-term care
In response, Geoffrey swore that he and Yolis had adequately
cared for Peter in his own home and that Peter preferred to be in
his own home rather than in an institution. The allegations of
neglect and abuse were denied.
The material before the court included a capacity assessment of
Peter, which indicated that he was incapable of his personal
A report prepared by the Mississauga Halton Community Care
Access Centre was filed indicating that while there was obvious
family discord, the evidence as to Peter's condition was
inconclusive. He appeared to be fit and agile for his age, usually
well dressed and clean. However, occasionally he appeared unkempt
and the clothing and other items in his room were found to be in
At one point Daphne called the police to attend at the house,
which they did. The policeman's notes indicated that while
Peter was obviously not mentally capable, he appeared to be happy
with the arrangements. The policeman indicated that he had no
As a result, the court was faced with conflicting evidence.
As she was the applicant, the onus was on Daphne to satisfy the
court not only that Peter was incapable of making his own
decisions, but also that there was no appropriate alternative
course of action other than a guardianship. A power of attorney for
personal care is considered to be an appropriate alternative course
of action provided, of course, that there was no reason for the
court to prefer a guardianship arrangement. A court would do so,
for example, if the court was satisfied that the named attorney or
attorneys were not doing their job properly.
In this case, the court had little problem finding that Peter
was incapable of personal care. However, the court was not
satisfied that the existing power of attorney was not adequate to
provide for that care. As far as the court was concerned, based on
the conflicting evidence, Daphne had not met the onus upon her to
satisfy the court that Peter's needs were not being addressed
adequately under the current arrangements. The court felt that
while he was not being cared for to a standard of perfection, such
a standard was not required. What was required was that Peter be
reasonably cared for and the court felt that this was taking
The court pointed out that it was Peter's wish that his
children be responsible for his care. His wishes should be observed
unless it was clear that his interests were being harmed. Since
there is evidence that he was doing reasonably well in his own
home, it was not shown to the court's satisfaction that his
interests were being harmed. Furthermore, the court observed that
there were advantages to Peter being able to live in his own home
and in comfortable surroundings with his children.
The court did make reference to the existence of a conflict
between the children. The court felt that the conflict by itself
was not adversely affecting his interests because on a practical
level, day to day decisions were made by Geoffrey and Yolis and
there was no satisfactory evidence that those decisions were
causing harm to Peter.
This is one of those sad cases of a dysfunctional family going
to war over a parent who probably would have been appalled by these
events, if he had been capable of appreciating them. To parents,
this is a valuable lesson as to the care that has to be taken in
deciding to whom to grant a power of attorney. To lawyers, this is
an important lesson in the quality of evidence that needs to be
brought forward in order to displace a parent's wishes as
expressed in a power of attorney.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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