The applicant brought a motion to remove his brother, the respondent, as the attorney for property and personal care for their mother, and to compel the return of over $439,000 transferred to the respondent by their parents.
The applicant also sought to strike the respondent's affidavit for failing to answer undertakings.
The court declined to strike the affidavit as the respondent's counsel took responsibility for the delay.
Applying the test for removal of a power of attorney, the court found evidence of financial misconduct but could not conclude on the motion record that removing the respondent was in the mother's best interests.
The court also found that the presumption of resulting trust applied to the inter vivos transfers, but directed a trial to determine whether the transfers were gifts and whether the power of attorney should be terminated.
