Canadian court rules POA invalid due to lack of capacity

Tuesday, 28 March 2023
The Court of Appeal for Ontario (the Court of Appeal) has upheld the decision of the province’s Superior Court of Justice (the Superior Court) that ruled a grantor’s powers of attorney (POAs) invalid. The case considered capacity, undue influence and the admissibility of “surreptitious” audio recordings as evidence.
power of attorney

Carolyn Brown (the grantor) updated her will and POAs in 2009 to name her sister-in-law Jeanne Brown as her attorney for property and her daughter Christina Rudin-Brown and son Gordon Brown (the appellant) as her attorneys for personal care. In 2016, the grantor executed a new POA naming the appellant as the only attorney for both property and personal care.

The grantor started to lose capacity “several years” before two different assessors found her incapable of managing her affairs in 2017. Accordingly, two competing applications for guardianship and POA over the grantor were brought before the Superior Court.

The case took an interesting turn as the Superior Court ruled “with some reluctance” that certain audio recordings of conversations between the grantor and appellant were admissible as evidence. The judge accepted the recordings, saying “if I were to exclude the recordings and the evidence that flowed from them, I would be left to decide the case based on a record I know to be incomplete,” but noting that “surreptitious audio and video recordings should be strongly discouraged by the courts”.

The Superior Court found that the appellant failed to show that the grantor signed the POAs as a result of “her own full, free and informed thought” and “failed to rebut the presumption of undue influence…even if [the grantor] had the capacity to sign one or both powers of attorney, they are not valid due to undue influence.”

The appellant brought the case to the Court of Appeal, arguing that the trial judge “erred in her treatment of capacity, ignored and failed to give proper weight to the evidence that she should have accepted, and was biased against him.”

The Court of Appeal found that the appellant did not point to any reversible error by the Superior Court. “His submissions effectively boil down to an argument that the trial judge erred in not accepting his version of events and view of the evidence, and amount to a request that this court retry the application and cross-application,” the judge said. “Absent reversible error, as is the case here, we cannot intervene.”

Accordingly, the appeal was rejected (Rudin-Brown v Brown, 2023 ONCA 151).


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