Mara Farmer

Costs decision following dismissal of an application concerning powers of attorney and guardianship of an incapable adult.

The applicant, a child of the incapable person, had been removed as attorney for property and personal care and ordered to account for property taken without consent.

The court considered the appropriate scale and allocation of costs among family members, added parties, and the Public Guardian and Trustee.

Finding the applicant’s conduct scandalous and improper, including failure to serve parties, non-compliance with court orders, and allegations of elder abuse, the court ordered substantial indemnity costs payable personally by the applicant.

Costs incurred by the Public Guardian and Trustee were instead ordered payable from the incapable person’s assets due to its statutory role and absence of bad faith.

An application sought guardianship over an elderly person's property and personal care.

The court found that a valid continuing power of attorney executed prior to the incapacity certificate governed management of the incapable person's affairs under the Substitute Decisions Act, 1992.

The applicant had failed to disclose the power of attorney and faced allegations of elder abuse and misappropriation of the incapable person's property.

The court dismissed the guardianship application, removed the applicant as attorney for property and personal care under the existing power of attorney, and substituted other family members as attorneys.

Directions were also issued regarding return of personal property and continuation of restricted visitation arrangements.

The applicants, the son and daughter-in-law of the incapable respondent, brought an application for the passing of accounts and the removal of the respondent's daughter as joint attorney for property.

The court found that the daughter had improperly taken funds from her mother's accounts for her personal use and had failed to provide a proper accounting as ordered.

The court ordered the daughter to repay $21,133.12 to her mother's estate, removed her as joint attorney for property, and refused to pass her accounts.

Following litigation concerning the affairs of an incapable person, the court determined costs between family members and the Office of the Public Guardian and Trustee.

One party sought substantial full indemnity costs from the incapable person's estate and additional amounts from another family member.

The court emphasized proportionality in estate litigation involving incapable persons and rejected the expectation that legal costs will routinely be borne by the incapable person's estate.

While finding misconduct and escalation of litigation by multiple parties, the court held that the primary responsibility for prolonging the litigation rested with one party.

The court ordered that each party bear their own costs except that one party pay $10,000 toward another party’s costs, and that the cost of a capacity assessment be reimbursed from the incapable person's estate.