Court File and Parties

COURT FILE NO.: CV-21-00672638-00ES DATE: 20230131 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DEBRA STEWART Applicant – and – YOLANTA ZAWADZINSKI, JANINA JACKIEWICZ, and OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE Respondents

Counsel: Sheila Morris, for the Applicant Yolanta Zawadzinski, self-representing Matthew Urback, s. 3 counsel for the Respondent, Janina Jackiewicz

HEARD: November 30, 2022

Reasons for Decision

Dietrich J.

[1] Janina Jackiewicz was born in 1928 in Poland. She is 94 years of age. She has been a widow since her husband’s death in 1995.

[2] The applicant, Debra Stewart, is the common law spouse of Ms. Jackiewicz’s son Andrew Jackiewicz (“Andrew”). The respondent, Yolanta Zawadzinski (the “respondent”), is Ms. Jackiewicz’s niece, a daughter of Ms. Jackiewicz’s sister, Jadwiga Zawadzinski.

[3] In March 2017, with the assistance of her lawyer, Duncan Boardman, Ms. Jackiewicz prepared draft powers of attorney, in which she appointed Andrew and the applicant as her attorneys for property and her attorneys for personal care, jointly and severally. There are no signed copies of these powers of attorney in the record.

[4] In early May 2019, the respondent took Ms. Jackiewicz to Mr. Boardman’s office to have her prepare and execute powers of attorney appointing the respondent as Ms. Jackiewicz’s attorney for property and personal care, and to prepare and execute a new will as well.

[5] On July 3, 2019, with the assistance of Mr. Boardman, Ms. Jackiewicz signed a power of attorney for personal care, appointing the applicant as her attorney for personal care and appointing two other relatives, not including the respondent, as alternative attorneys for personal care. On September 27, 2019, with the assistance of Mr. Boardman, Ms. Jackiewicz executed a continuing power of attorney for property appointing the applicant as her attorney for property and appointing the same two other relatives as alternative attorneys for property (collectively, the “2019 Powers of Attorney”).

[6] On October 28, 2021, the respondent took Ms. Jackiewicz to a new lawyer, who was unknown to Ms. Jackiewicz. At that lawyer’s office, Ms. Jackiewicz executed a power of attorney for property and a power of attorney for personal care (the “2021 Powers of Attorney”). In each, she appointed the respondent as her attorney.

[7] At the request of the respondent’s former solicitors, Blaney McMurtry LLP, Dr. Alina Kaminska, a psychologist and qualified capacity assessor, assessed Ms. Jackiewicz on March 3, 2022. After attempts at a follow-up assessment failed, on August 30, 2022, Dr. Kaminska released her written report (the “Kaminska Report”), in which she opined that Ms. Jackiewicz did not have capacity to execute the 2021 Powers of Attorney.

[8] For the reasons that follow, I find that the 2021 Powers of Attorney are invalid and of no force or effect, and I find that the 2019 Powers of Attorney were not revoked and are valid and operative. The respondent shall deliver an accounting relating to her management of Ms. Jackiewicz’ property from October 28, 2021 to the date of these reasons.

Background Facts and Evidence

[9] Andrew, who has epilepsy, has lived with Ms. Jackiewicz for his entire life. The applicant moved in with them at Ms. Jackiewicz’s home at 15 Surrey Avenue, in Scarborough, Ontario approximately 20 years ago.

[10] Until the 2021 Powers of Attorney were executed, the applicant had been acting as Ms. Jackiewicz’s attorney for property and personal care since 2017, excepting the brief period of time after May 2019 when the respondent arranged for Ms. Jackiewicz to execute powers of attorney. The latter powers of attorney were revoked by the 2019 Powers of Attorney.

[11] On May 27, 2021, Dr. G. Leung, at the Geriatric Clinic of Michael Garron Hospital, examined Ms. Jackiewicz and her CT scan. He suspected a diagnosis of Lewy Body dementia or mixed vascular Lewy Body dementia of moderate severity. In the Kaminska Report, Dr. Kaminska reported Dr. Leung’s impression of Ms. Jackiewicz as a patient who presented with a two-year history of subjective cognitive deficits in multiple domains with neuropsychiatric symptoms and associated functional impairments consistent with dementia. He also noted her right-eye blindness. Dr. Leung then suggested that the applicant initiate an application for long-term care for Ms. Jackiewicz.

[12] In 2021, Ms. Jackiewicz twice wandered from her Surrey Avenue home. In one incident, she returned to the Property with an unknown male. In another, she wandered into the street and was rescued by her neighbours.

[13] Ms. Jackiewicz, the applicant, and other family members researched and visited various retirement residences, and Ms. Jackiewicz moved into Vistamere Retirement Residence (“Vistamere”) on September 19, 2021.

[14] Between September 20, 2021 and October 1, 2021, Ms. Jackiewicz’s care team at Vistamere made the following assessments. Dr. J. Levasseur performed a Montreal Cognitive Assessment (“MoCA”) on which Ms. Jackiewicz scored 3/30, though vision was noted to be a factor. He recommended that Ms. Jackiewicz be registered with the police in case she wandered, and he recommended support by the LHIN for bathing, personal care, nursing supervision and medication. Ms. R. Surell, a Registered Nurse at Vistamere, noted Ms. Jackiewicz’s impaired cognitive status regarding short-term memory, and orientation to time, place and person. She noted that Ms. Jackiewicz was at risk of wandering, and she required assistance and direction for meals. Ms. Jackiewicz’s niece, Bozena Gorska, began to provide some of this assistance at that time. On October 15, 2021, Lisa Eves, a home and community care support coordinator, indicated that Ms. Jackiewicz was not capable of making a decision about admission to a nursing home.

[15] Following the execution of the 2021 Powers of Attorney in October 2021, the respondent began to use the 2021 Powers of Attorney to take control of Ms. Jackiewicz’s assets. The respondent attempted to make a withdrawal from Ms. Jackiewicz’s Bank of Montreal account that was so large the bank refused to allow it and permitted a withdrawal of $1,000 only. The respondent redirected Ms. Jackiewicz’s Old Age Security and Canada Pension Plan payments into a new bank account. The respondent also applied for a new credit card for Ms. Jackiewicz.

[16] On November 5, 2021, the respondent relied on the 2021 Powers of Attorney to unilaterally move Ms. Jackiewicz out of Vistamere, and to prohibit the staff there, Dr. Lavesseur, and bank staff from communicating with the applicant. Ms. Jackiewicz’s tenancy at Vistamere was terminated effective December 5, 2021.

[17] The respondent moved Ms. Jackiewicz into Copernicus Lodge, a self-care two-bedroom apartment contained within an assisted-living facility, which also offered long-term care suites. At the time that Ms. Jackiewicz moved into the apartment, it was already occupied by the respondent and her elderly mother, Jadwiga Zawadzinski, who is 98 years of age.

[18] With no access to Ms. Jackiewicz, the applicant commenced these proceedings around November 26, 2021.

[19] At the first case conference, on November 30, 2021, the respondent advised the court that Ms. Jackiewicz was permitted to remain at Copernicus Lodge, even though this meant that there were three adults sharing a two-bedroom unit. Justice Penny ordered that Ms. Jackiewicz would remain a resident there until further court order. Justice Penny also froze Ms. Jackiewicz’s assets, allowing for her expenses at Copernicus Lodge to be paid, and he ordered that all parties have reasonable access to Ms. Jackiewicz by phone, in person and through virtual means.

[20] The applicant’s evidence is that Copernicus Lodge advised her that Ms. Jackiewicz could not remain there because Ms. Jackiewicz’s stay was in breach of the policy respecting guests. The respondent disputes this fact; however, a letter from counsel to Copernicus Lodge, dated December 1, 2021, states that the respondent had already been advised of this policy. The respondent also denies having ever been given such advice.

[21] The applicant’s evidence is that the respondent refused to install a landline at Copernicus Lodge for Ms. Jackiewicz or to schedule phone calls with family members, and she refused to allow Ms. Jackiewicz to see her immediate family on Christmas Eve, Christmas Day and New Year’s Eve.

[22] On January 6, 2022, Conway J. ordered specific access visits, and the appointment of counsel for Ms. Jackiewicz pursuant to s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”), among other orders.

[23] Matthew Urback was appointed as s. 3 counsel, and Ms. Jackiewicz advised him that she wished to see the applicant. This information was conveyed to the respondent, who continued to impede the applicant’s access, though she did not impede access by s. 3 counsel. Of the 17 visits that ought to have occurred per Conway J.’s order, the applicant only had six visits, and not one of them was private.

[24] The applicant scheduled another case conference, held on June 28, 2022, to address access issues. Section 3 counsel confirmed that Ms. Jackiewicz wanted to see the applicant and Andrew. The respondent sought to terminate all access as ordered by Conway J., notwithstanding that she had consented to Conway J.’s order. To ensure private access visits, Kimmel J. ordered that access visits between Ms. Jackiewicz and the applicant were to take place at the Surrey Avenue residence or outside Copernicus Lodge. Justice Kimmel ordered compliance with Conway J.’s Order.

[25] The respondent continued to block access to Ms. Jackiewicz. The applicant sought a fourth case conference. By this time, Ms. Jackiewicz had been admitted to Toronto Western Hospital following a fall. At the case conference on August 8, 2022, s. 3 counsel reported that Ms. Jackiewicz was starved for company and wanted to see the applicant and Andrew. I then ordered that access to Ms. Jackiewicz continue in accordance with the earlier orders of Conway and Kimmel JJ., including the provisions regarding privacy. Those provisions directed that no party was to interrupt the conversations or visits, listen in to the conversations or visits, or in any other way interfere with access or impede the privacy of the conversations or visits. I also set a timetable for the hearing of this application.

[26] The respondent breached the privacy provisions by surreptitiously tape-recording a visit between Ms. Jackiewicz and her s. 3 counsel.

[27] Prior to the judicial mediation scheduled for September 12, 2022, Dr. Kaminska advised that she had prepared the Kaminska Report, and she sought payment for it before she would release it. The applicant and the respondent could not agree on who was responsible for the payment. The applicant submitted that the respondent should pay for it as she had unilaterally requisitioned it after refusing to cooperate with the applicant to mutually select a capacity assessor. I ordered that Dr. Kaminska’s fee be paid from Ms. Jackiewicz’s property without prejudice to a subsequent determination that the fees ought to be paid by someone other than Ms. Jackiewicz.

[28] On September 15, 2022, the Kaminska Report was released to s. 3 counsel, who provided a copy to each of the respondent and the applicant. The applicant convened another case conference on September 27, 2022 before Gilmore J. Given Dr. Kaminska’s findings, Gilmore J. accelerated the litigation timetable and stayed the operation of the 2021 Powers of Attorney.

[29] Following the release of the Kaminska Report, the respondent unilaterally moved Ms. Jackiewicz from Toronto Western Hospital into long-term care at Copernicus Lodge without advising either the applicant or s. 3 counsel in advance. The respondent authorized the costs of the long-term care facility to be paid from an account owned jointly by Ms. Jackiewicz and the applicant, presumably relying on the 2021 Powers of Attorney.

Issues

[30] The following issues arise in this matter:

1. Are the 2021 Powers of Attorney invalid and of no force and effect?
2. Are the 2019 Powers of Attorney valid and operative?
3. Should the respondent account to Ms. Jackiewicz for the period during which the respondent was managing Ms. Jackiewicz’s property?

Positions of the Parties

[31] The applicant asserts that the respondent has variously used Ms. Jackiewicz’s capacity as both a shield and a sword when it suited her. As examples, the applicant asserts that the respondent maintained that Ms. Jackiewicz had capacity to execute the 2021 Powers of Attorney but did not have capacity to execute the 2019 Powers of Attorney, and that the applicant and Andrew exerted undue influence over a vulnerable Ms. Jackiewicz regarding the 2019 Powers of Attorney. Also, it was the respondent who invoked the 2021 Powers of Attorney on November 5, 2021 to transfer Ms. Jackiewicz from Vistamere to Copernicus Lodge and, in the process, advised the police that Ms. Jackiewicz had dementia. But, otherwise, the respondent maintained throughout this litigation that Ms. Jackiewicz is capable. Also, the respondent advised the court that Ms. Jackiewicz requested a capacity assessment, but the Kaminska Report notes that the respondent’s former lawyer requested the assessment, and the respondent herself deposed that Dr. Kaminska had contracted with the respondent and should have followed up with the respondent to confirm consensus regarding release of the Kaminska Report.

[32] The applicant also asserts that there were suspicious circumstances surrounding the preparation of the 2021 Powers of Attorney, and that the respondent unduly influenced Ms. Jackiewicz to execute the 2021 Powers of Attorney. Accordingly, she submits that the 2021 Powers of Attorney are not valid, and they did not revoke the 2019 Powers of Attorney.

[33] The respondent submits that Ms. Jackiewicz is presumed to be capable to manage her property and personal care and that Ms. Jackiewicz had capacity to execute the 2021 Powers of Attorney, which revoked the 2019 Powers of Attorney. The respondent further submits that the 2021 Powers of Attorney stayed by Gilmore J. should be reinstated.

[34] The respondent also submits that she intervened in Ms. Jackiewicz’s care because the applicant had used Ms. Jackiewicz’s love and concern for Andrew as a means to influence Ms. Jackiewicz emotionally and financially.

[35] The respondent asserts that the applicant’s application should fail because she has not served all persons required to be served on an application for guardianship, including Ms. Jackiewicz. I will address this assertion here. Because the applicant did not pursue an appointment as Ms. Jackiewicz’s guardian, these service requirements do not apply.

[36] Ms. Jackiewicz, through her s. 3 counsel, submits that she can make her own decisions and carry out her own personal wishes. Ms. Jackiewicz does not believe that she has a valid power of attorney and is not interested in having one. She does, however, acknowledge that she needs assistance from time to time.

[37] Section 3 counsel submits that it is very important to Ms. Jackiewicz that she maintain her relationship with both the applicant and the respondent as well as the other members of her family.

Law

[38] A continuing power of attorney is valid if the grantor, at the time of executing it, is capable of giving it, even if incapable of managing property: SDA, s. 9(1).

[39] A person is capable of giving a continuing power of attorney if he or she,

a) knows what kind of property he or she has and its approximate value; b) is aware of obligations owed to his or her dependants; c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney; d) knows that the attorney must account for his or her dealings with the person’s property; e) knows that he or she may, if capable, revoke the continuing power of attorney; f) appreciates that unless the attorney manages the property prudently its value may decline; and g) appreciates the possibility that the attorney could misuse the authority given to him or her: SDA, s. 8 (1).

[40] A person is capable of revoking a continuing power of attorney if he or she is capable of giving one: SDA, s. 8 (2).

[41] A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care: SDA, s. 47 (2).

[42] A person is capable of giving a power of attorney for personal care if the person,

a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and b) appreciates that the person may need to have the proposed attorney make decisions for the person: SDA, s. 47 (1).

[43] A person is capable of revoking a power of attorney for personal care if he or she is capable of giving one. SDA, s. 47 (3).

[44] The doctrine of suspicious circumstances extends to powers of attorney. In Nguyen-Crawford v. Nguyen, 2010 ONSC 6836, at para. 85, Price J. stated:

Where there are suspicious circumstances of undue influence surrounding the execution of a power of attorney, the presumption of capacity under s. 7 of the SDA does not operate and the burden of proof with respect to capacity shifts to the grantee of the power of attorney.

[45] Suspicious circumstances may arise from: (1) circumstances surrounding the preparation of the document; (2) circumstances tending to call into question the capacity of the grantor; or (3) circumstances tending to show that the free will of the grantor was overborne by acts of coercion or fraud: Vout v. Hay, [1995] 2 S.C.R. 876, at para. 25.

[46] Suspicious circumstances in any of the three categories affect the burden of proof. In determining whether there are suspicious circumstances, the court may consider the extent of the physical and mental impairment around the time the powers of attorney were signed; whether the powers of attorney in question constitute a significant change from the former powers of attorney; the factual circumstances surrounding the execution of the powers of attorney; and, whether any grantee was instrumental in the preparation of the powers of attorney: Rudin-Brown et al. v. Brown, 2021 ONSC 3366, 155 O.R. (3d) 750, at paras. 89, 93-125.

[47] Unsoundness of mind or a weakened mental state will be a factor in determining the degree of influence sufficient to have documents set aside: MacKenzie Estate, Re, [1945] 1 D.L.R. 388 (Ont. C.A.) aff’d, [1946] 4 D.L.R. 225 (S.C.C.), at para. 22; Banton v. Banton, [1988] 164 D.L.R. (4th) 176 (Ont. Gen. Div.), at paras. 63 and 65.

Analysis

Are the 2021 Powers of Attorney invalid and of no force and effect?

[48] I find that the circumstances surrounding the preparation and execution of the 2021 Powers of Attorney bear the hallmarks of suspicious circumstances, and that, on a balance of probabilities, the respondent unduly influenced Ms. Jackiewicz to make the 2021 Powers of Attorney. In my view, based on the evidentiary record, it is more likely than not that Ms. Jackiewicz did not make the 2021 Powers of Attorney of her own free will. I will explain.

[49] For assistance in preparing the 2021 Powers of Attorney, Ms. Jackiewicz did not return to Mr. Boardman, the lawyer who had prepared her estate planning documents historically, including the 2017 draft powers of attorney, the May 2019 Power of Attorneys, and the 2019 Powers of Attorney. Instead, the respondent took Ms. Jackiewicz to a new lawyer, who was unknown to Ms. Jackiewicz, and who had no apparent history regarding the earlier Powers of Attorney. The 2021 Powers of Attorney named Ms. Jackiewicz’s Florida-resident daughter, Maria Larochelle, as an alternative attorney, but Ms. Larochelle had not been appointed as such on any of the earlier Powers of Attorney. Nor is there any evidence of Ms. Larochelle having any involvement in Ms. Jackiewicz’s property management or care.

[50] It is also apparent from the record that Ms. Jackiewicz suffered from objective mental impairment at the time the 2021 Powers of Attorney were executed. By 2021, Ms. Jackiewicz had begun to wander, which put her in clear danger on at least two occasions.

[51] Between September 20, 2021 and October 1, 2021, Ms. Jackiewicz’s care team at Vistamere made a number of medical assessments that resulted in a very low MoCA score, and recommendations that Ms. Jackiewicz be registered with the police in case she wandered, and that she be provided with personal care support and nursing supervision. Ms. Jackiewicz was found to have impaired cognitive status regarding short-term memory, and orientation to time, place and person. It was noted that Ms. Jackiewicz required assistance and direction for meals. She was also perceived to be incapable of making a decision about admission to a nursing home. At this time, Ms. Jackiewicz suffered from physical impairments as well, including right eye blindness, and she required a pacemaker. She was found to be unable to independently perform activities of daily living, such as eating and showering.

[52] In my view, these weaknesses and mental impairment had the potential to make Ms. Jackiewicz vulnerable to influence. If Ms. Jackiewicz truly wished to make new powers of attorney in 2021, on which the applicant would not be named, she would have needed the respondent to take her to see a lawyer. Because, as noted by Dr. Kaminska, Ms. Jackiewicz’s ability to communicate in English was in decline by October 2021, Ms. Jackiewicz would likely have had to rely on the respondent to translate the powers of attorney into Polish. There is no evidence to suggest that such translation was provided for Ms. Jackiewicz’s benefit. There is little independent evidence to confirm that Ms. Jackiewicz understood the 2021 Powers of Attorney. The respondent relies on the affidavit evidence of the two witnesses to the 2021 Powers of Attorney, who swore affidavits attesting to their belief that, on October 28, 2021, Ms. Jackiewicz appeared to understand the contents of the Powers of Attorney and approved them. In my view, these affidavits, which are standard form affidavits of execution, carry little weight with respect to Ms. Jackiewicz’s capacity to give a continuing power of attorney as set out in s. 8 of the SDA, or her capacity to give a power of attorney for personal care as set out in s. 47(1) of the SDA.

[53] Dr. Kaminska was specifically engaged by the respondent to form an opinion on whether Ms. Jackiewicz had the requisite capacity, as set out in the SDA, to make the 2021 Powers of Attorney. Dr. Kaminska concluded that Ms. Jackiewicz did not have capacity to revoke the 2019 Powers of Attorney or to execute the 2021 Powers of Attorney. Dr. Kaminska conducted a thorough assessment, relying on litigation materials, financial records and medical records provided to her by the respondent’s former counsel. The Kaminska Report includes a detailed review of these records, and confirmation that Dr. Kaminska consulted the respondent’s former counsel, the respondent, and s. 3 counsel. Dr. Kaminska also confirmed that she sought and received clarification of information as needed.

[54] On March 3, 2022, Dr. Kaminska spent two and a half hours interviewing Ms. Jackiewicz alone, in Polish. On the MoCA test conducted by Dr. Kaminska, Ms. Jackiewicz scored 10/28, which Dr. Kaminska confirmed indicated impaired cognitive function. During the assessment, Dr. Kaminska noted that Mrs. Jackiewicz was oriented as to the month but not date or year. Having been informed of the date, she could not recall it less than 30 minutes later. She did not know her birthday and reported herself as being about 40 or 50 years old. She reported that her niece was about the same age. Among the information considered by Dr. Kaminska were imaging results from August 2021 showing atrophy in an area of the brain important for memory functioning.

[55] During the assessment, Dr. Kaminska noted that Ms. Jackiewicz was unable to provide an estimate of the value of her home. With cueing, she stated that her home was worth more than $100,000 and perhaps more than $1,000,000. She could not accurately estimate her savings but could name one of two banks where she had accounts. Ms. Jackiewicz could not state which legal documents she had signed, claiming that she did so only when she bought her house. Ms. Jackiewicz was unable to comment on any responsibilities attorneys have toward persons on whose behalf they act and was also unable to list any potential risks of having an attorney. Ms. Jackiewicz was unaware of this court application or any conflict regarding who would act as her substitute decision maker. She did not recall having met Mr. Urback or any topic of their conversations.

[56] The respondent submits that the Kaminska Report should be viewed with caution because it ignores Dr. Slomovics’ report dated January 12, 2022 wherein Ms. Jackiewicz consented to partial cornea transplant surgery; and because, while Dr. Kaminska noted Ms. Jackiewicz’s March 3, 2022 MoCA 10/28 test result, she failed to mention Ms. Jackiewicz’s 15/28 MoCA test result on the MoCA test conducted by Dr. Caners on December 15, 2021, one and a half months after Ms. Jackiewicz appointed the respondent as her attorney for property.

[57] In my view, these facts do not undermine Dr. Kaminska’s finding that Ms. Jackiewicz likely did not demonstrate the capacity to give a power of attorney for property on October 28, 2021 or to revoke the 2019 Powers of Attorney. Dr. Kaminska noted that consenting to a medical procedure would require Ms. Jackiewicz to process information over a relatively brief period of time, as opposed to having knowledge dependent on her recall of previously acquired information, reasoning, and problem-solving. Dr. Kaminska noted that the latter are cognitive abilities required for appreciating the roles of an attorney.

[58] I acknowledge that the record shows a range of MoCA scores for Ms. Jackiewicz from 3/30 in the fall of 2021 to 15/28 in December 2021 to 10/28 in March 2022. Dr. Kaminska conceded that the screening done in the fall of 2021 was done in English, which may account for the lower MoCA score. However, she also noted that a language barrier may indicate a sign of cognitive decline because Ms. Jackiewicz had worked as an English-speaking bank teller for her entire adult life. Dr. Kaminska did not offer a view on what may account for the difference between the 15/28 score in December 2021 and the 10/28 score in March 2022. However, the respondent did not adduce any expert or other evidence to suggest that a MoCA score of 15/28 would support a finding of no or low cognitive impairment, such that Ms. Jackiewicz likely had capacity to execute the 2021 Powers of Attorney and to revoke the 2019 Powers of Attorney.

[59] The respondent also argued that Dr. Kaminska did not complete her assessment but nevertheless released the Kaminska Report. The record shows that the respondent agreed that Dr. Kaminska could make the capacity assessment based on the information Dr. Kaminska gathered from Ms. Jackiewicz on March 3, 2022.

[60] I accept Dr. Kaminska’s opinion that Ms. Jackiewicz’s moderate diffuse brain atrophy from August 2020, coupled with her inability to independently participate in geriatric/medical valuations in May and September 2021 are important factors to suggest that her mental functioning at that time would not be appreciably better on March 3, 2022, when she was incapable of granting powers of attorney.

[61] Despite her finding, Dr. Kaminska notes that it was possible that Ms. Jackiewicz’s mental capacity to give a power of attorney for personal care, as opposed to a power of attorney for property, may have been better preserved on or around October 28, 2021, particularly the ability to understand whether the proposed attorney had a genuine concern for her welfare. However, in order to meet the test to make a power of attorney for personal care, Ms. Jackiewicz would also have needed to demonstrate an appreciation that she may need to have the proposed attorney make decisions on her behalf.

Are the 2019 Powers of Attorney valid and operative?

[62] The 2019 Powers of Attorney are presumptively valid: SDA, s. 2.

[63] The respondent submits that the 2019 Powers of Attorney are not valid. The respondent asserts that at the time the 2019 Powers of Attorney were executed, the applicant had maladministered Ms. Jackiewicz’s medication, making Ms. Jackiewicz vulnerable and therefore under the applicant’s influence because of Ms. Jackiewicz’s severe vertigo. Accordingly, the respondent asserts that the 2019 Powers of Attorney cannot be valid. This assertion is bald and unfounded by any persuasive evidence. There is no evidence to support a claim that a temporary bout of vertigo rendered Ms. Jackiewicz incapable of executing a power of attorney. Similarly, the respondent’s claim that the applicant was using Andrew as a “weapon” to coerce Ms. Jackiewicz by threatening to leave him and not look after him unless Ms. Jackiewicz granted powers of attorney to the applicant is unsupported by the evidence.

[64] I find that the 2019 Powers of Attorney were not revoked and are valid and operative.

Should the respondent account to Ms. Jackiewicz for the period during which the respondent was managing Ms. Jackiewicz’s property?

[65] An attorney for property must keep accounts if the grantor is incapable of managing property: s. 32(6) of the SDA. The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provide that attorneys acting under powers of attorney must prepare accounts relating to their management of assets or money.

[66] The court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed and may do so at the request of the attorney for personal care or “any other person” if the person making the request has a genuine interest in the grantor’s welfare and it would be reasonable to believe that a court hearing the matter may order the attorney to pass her accounts: s. 42(1) and 42(4) of the SDA. Because I have found the 2021 Powers of Attorney are not valid or enforceable, the applicant is entitled to request an accounting from the respondent as an attorney for personal care. In any event, the applicant is entitled to the accounting as a person with a genuine interest in Ms. Jackiewicz’s welfare.

[67] The respondent has been acting as a de facto attorney for property in respect of Ms. Jackiewicz’s property since around October 28, 2021, and she has unilaterally exercised that authority in ways that affect Ms. Jackiewicz’s interests. The respondent’s acts included redirecting Ms. Jackiewicz’s mail and funds such that the respondent alone had access to certain information and bank accounts relating to Ms. Jackiewicz. The respondent attempted to obtain a credit card in Ms. Jackiewicz’s name, and she continued to exploit the 2021 Powers of Attorney despite this application, Penny J.’s freezing order, and the Kaminska Report.

[68] I am satisfied that the respondent should be required to serve and file her accounts for the period commencing October 28, 2021 to the date of these reasons. Based on the facts of this case, the applicant’s request for an accounting is reasonable and appropriate.

Disposition

[69] The following orders shall issue:

1. An order declaring the 2021 Powers of Attorney, dated October 28, 2021, invalid and of no force and effect;
2. An order declaring the 2019 Powers of Attorney, dated September 27, 2019, valid and operative;
3. An order that the respondent serve and file her accounts (including all investments, pension funds and jointly-held assets) in a form acceptable to the applicant for the period from October 28, 2021 to the date of the Order within six months of the date of the Order; and, if after having reviewed the accounts, the applicant requests that the respondent bring an application to pass her accounts, the respondent shall bring such an application to pass her accounts within 60 days of the applicant’s request.
4. An order that the applicant, as an attorney for property, shall comply with her duty to seek to foster regular personal contact between Ms. Jackiewicz and supportive family members and friends, including the respondent and Ms. Jackiewicz’s sister Jadwiga Zawadzinski;
5. An order that the scheduling and manner of visits with Ms. Jackiewicz shall be undertaken with input from Ms. Jackiewicz to the extent she is able to provide it.

Costs

[70] The applicant has been successful on this application, and she is entitled to her costs. The applicant seeks costs on a substantial or full indemnity basis. According to her Bill of Costs, the applicant’s substantial indemnity costs, inclusive of disbursements and HST, are $69,491.68, and her full indemnity costs are $74,712.05. In addition, the applicant made a r. 49 offer to settle on November 4, 2022.

[71] Section 3 counsel submitted a Bill of Costs in which he shows his substantial indemnity costs, inclusive of disbursements and HST, to be $24,385.55, and his partial indemnity costs to be $16,259.72.

[72] According to the respondent’s Bill of Costs, if successful, she would have sought costs based on the fees charged by her former counsel, in the total amount of $39,586.74, and fees for her own time (at a rate of $250 per hour) of $31,250, for a grand total of $70,836.74.

[73] The parties are encouraged to agree on the matter of costs among themselves. If the parties cannot, the applicant and s. 3 counsel shall serve and file written costs submissions, not exceeding three pages (double-spaced), within 14 days of these reasons. The respondent shall serve and file similar written submissions within 14 days thereafter.

Dietrich J.

Released: January 31, 2023