SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-0284-00
DATE: 2013-03-11
RE: Lehtonen v. Neill
HEARD: March 8, 2013
BEFORE: Pierce RSJ.
COUNSEL:
Mr. Todd Lehtonen and Ms. Melinda Lehtonen, self-represented
Mr. Rene Larson, for the Respondent
E N D O R S E M E N T
[1] The applicants, Todd Lehtonen (“Todd”) and Melinda Lehtonen, (“Melinda”) are the children of Donna Lehtonen, (“Donna”) whom they allege is incapable of managing her property and personal care as a result of two strokes. Previously, Donna appointed Melinda as her attorney for property pursuant to a power of attorney. Donna revoked Melinda’s appointment in or about 2002 and substituted the respondent, Joyce Neill, as her attorney for property. Ms. Neill cohabits with Donna’s son, Darcy Lehtonen.
[2] Melinda’s accounts as attorney for property for the period, December 31, 1999 to July 31, 2002, were passed by virtue of the order of Mr. Justice John Wright on April 10, 2006.
[3] The applicants became suspicious that Ms. Neill was taking excess compensation from their mother’s estate and was not looking after her properly. They launched an application to remove Ms. Neill as the attorney for property and substitute themselves as guardians of her property. At least, that is what I understand their intention is in this application. They rely on s. 33 (6) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 in their prayer for relief. I am unable to locate such a section number in the Act. In addition, the applicants seek a passing of accounts, and an order appointing themselves as guardians of their mother’s person and other relief.
[4] The applicants have not retained counsel. The procedural aspects of the case are a shambles. Much time and expense has been spent over the applicants’ concern with Donna’s money. It appears that the attorney has kept detailed records, year by year, of Donna’s affairs and has disclosed them to the applicants but this has not assuaged their suspicions. The applicants’ concern for Donna’s property has been stressful for Donna who does not like to see the dispute among her children grow more bitter as the years go on.
[5] This matter came before me on motion on February 1, 2013. At that time, the attorney filed an assessment completed in January, 2013, indicating that Donna was capable with respect to her personal care. As the previous capacity assessment as to Donna’s ability to manage property was ten years old, I ordered the attorney to file fresh evidence as follows:
a capacity assessment as to Donna’s capacity to manage property;
an assessment as to her ability to give a power of attorney; and
a report on her wishes to have the applicants appointed as guardians of her property if her wishes can be ascertained.
[6] I ordered this evidence served on the Public Guardian and Trustee. As well, the applicants were ordered to regularize service of their application and to serve and file a management plan for Donna’s property. I also appointed myself as case management judge.
[7] At the return of the application, Melinda indicated that she did not wish to continue with the application, but would leave it to Todd to do so. The application by Melinda Lehtonen is therefore dismissed, reserving the issue of costs. Todd continued to make submissions on the application.
[8] The respondent submitted that Todd does not have standing to seek a passing of accounts pursuant to s. 42 of the Act. Subsection 42 (4) authorizes the court to grant leave to any other person to seek a passing of accounts. Although Todd did not seek leave to do so, leave is granted to give him standing to seek a passing of accounts, on the grounds that he is a child of Donna Lehtonen and has an interest in her and her affairs.
[9] Upon being served with a completed application and supporting documents, the Public Guardian and Trustee wrote to the court, declining to be appointed as Donna’s guardian for property. The Public Guardian stated:
After reviewing all documentation, our office is of the opinion that we do not need to be involved in this matter, given that the capacity assessments indicate that Donna Lehtonen is capable of appointing a Power of Attorney and she has done so. The Public Guardian and Trustee is guardian of property of last resort and should not be involved in this case given the fact that Dona [sic] Lehtonen has been found capable.
[10] The fresh assessments establish that Donna is capable as to personal care and capable of appointing an attorney for property, although she is not capable of managing property. The assessor stated that Donna emphatically did not wish the applicants to be appointed as guardians of her property or her person. She also wished the court case to stop. The evidence of the assessor was not disputed.
[11] The assessor gave a detailed description of Donna’s living arrangements and the support she has for cleaning her apartment, grocery shopping, rides to appointments, as well as her health, nutrition, medications, and her pleasure in spending summers by the lake. As Donna is capable as to personal care, the court has no jurisdiction to appoint a guardian of her person. That claim is dismissed.
[12] In confirming that Donna has the capacity to appoint an attorney for property, the assessor confirmed that Donna understood the role of her attorney and that she could revoke the attorney if she wished to do so. The assessor stated that Donna was satisfied with the efforts of her current attorney.
[13] The burden is on the applicant to demonstrate that the attorney should be removed and a court appointed guardian for property substituted. Section 22 of the Substitute Decisions Act, 1992, sets out considerations for the court when appointing a guardian of property. It provides:
(1) The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.
[14] Subsection 22 (3) adds the following prohibition:
The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,
a) does not require the court to find the person to be incapable of managing property; and
b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.
[15] In this case, there is no evidence that it is necessary for the court to appoint a person to make decisions on Donna’s behalf about her property because Donna provided for decision-making when she appointed an attorney to manage her property. Her attorney makes decisions on her behalf. There is no justification for the court to intervene. The alternate arrangement of appointing an attorney to manage property does not require the court to make a formal finding that Donna is incapable of managing property. No declaration is made in this regard. The application to appoint a guardian of property for Donna Lehtonen is dismissed.
[16] The attorney appears to keep detailed accounts of Donna’s affairs. As it has been more than ten years since the last passing of accounts, it is time for a second passing of accounts. The respondent is ordered, within 30 days, to take out an appointment with the trial coordinator for me to pass her accounts relating to Donna Lehtonen’s property. The attorney may present her accounts by annual spread sheets that have been produced in this application, provided that the source documents for the entries are available for inspection at the passing of accounts if necessary.
[17] The accounts shall be served on Donna Lehtonen and Todd Lehtonen at least thirty days before the date for the passing of the accounts. Objections to the accounts shall be particularized in writing and served on the attorney and any other party to the passing of accounts and filed with the court at least fifteen days before the appointment to pass the accounts.
[18] Costs of this day are reserved to be spoken to at the passing of the accounts.
Regional Senior Justice H.M. Pierce
DATE: March 11, 2013
COURT FILE NO.: CV-12-0284-00
DATE: 2013-03-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lehtonen et al. v. Neill
BEFORE:
COUNSEL:
Mr. Todd Lehtonen and Ms. Melinda Lehtonen, self-represented
Mr. Rene Larson, for the Respondent
ENDORSEMENT
Pierce RSJ.
DATE: March 11, 2013
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