Paul Cappuccio

This is an appeal from a motion judge's order finding Henia Gefen lacked capacity to manage property or instruct counsel, appointing a litigation guardian and guardian of property, and removing her counsel.

The appellant, Harvey Gefen, challenged the findings of incapacity and the procedural validity of appointing a guardian of property by motion.

The Court of Appeal found no extricable legal error or palpable and overriding error in the motion judge's capacity assessment or the appointment of a neutral guardian.

The court also affirmed that a guardian of property can be appointed by motion within an application, rejecting the argument that a full application process is mandatory, emphasizing the liberal construction of the Rules of Civil Procedure.

The appeal was dismissed with costs.

Application concerning the validity of competing powers of attorney for an elderly incapable person and the conduct of family members acting as attorneys for property.

The court determined that a 2011 power of attorney appointing three children jointly was valid and revoked an earlier 2010 power appointing one child as sole attorney.

However, due to misconduct including transferring the incapable person’s assets into joint accounts and joint tenancy, that child was removed as attorney for property.

The court declined to appoint the Public Guardian and Trustee or a financial institution as guardian, finding the remaining attorneys capable of acting.

The court also resolved disputes on passing of accounts and awarded costs relating to a Mareva injunction and the proceedings.