COURT FILE NO.: CV-23-00698268-00ES DATE: 20240221
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAWN HOLLINGER, as Attorney for Personal Care of Larry Alvin Marshall and MD PRIVATE TRUST COMPANY, as Attorney for Property of Larry Alvin Marshall Applicants
– and –
THOMAS PATRICK MARSHALL, BRYAN DAVID MARSHALL, LARRY ALVIN MARSHALL by his litigation guardian SHAEL EISEN, and THE PUBLIC GUARDIAN AND TRUSTEE Respondents
Counsel: Angelique Moss, for the Applicant, Shawn Hollinger Daniel J. Dochylo, for the Applicant, MD Private Trust Company Arnold H. Zweig, for the Respondents, Thomas Patrick Marshall and Bryan David Marshall Shael Eisen, as litigation guardian for the Respondent, Larry Alvin Marshall
HEARD: December 22, 2023
REASONS FOR JUDGMENT
DIETRICH J.
1At issue in this application is the validity of power of attorney documents made by the respondent, Larry Alvin Marshall (“Mr. Marshall”), and whether a guardian of his property and a Guardian of his person ought to be appointed.
2Mr. Marshall is 82 years of age. Since September 2023, he has been living at Sunrise of Oakville retirement home. Prior to September 2023, Mr. Marshall had been living in his own residence in Oakville, Ontario, where he had resided since the 1990s (the “Oakville Residence”).
3The applicant, Dr. Shawn Hollinger (“Dr. Hollinger”), is a neonatologist, and he is named as Mr. Marshall’s Attorney for Personal Care pursuant to a Power of Attorney for Personal Care, dated March 11, 2022 (the “2022 POAPC”). Dr. Hollinger is related to Mr. Marshall through marriage, has known Mr. Marshall for approximately 25 years, and often travelled with Mr. Marshall and other members of Mr. Marshall’s extended family.
4Mr. Marshall’s second cousin, Patricia Murray (“Ms. Murray”), is named as the alternative Attorney for Personal Care on the 2022 POAPC.
5The applicant, MD Private Trust Company (“MDPT”), is named as Mr. Marshall’s Attorney for Property under a Power of Attorney for Property, dated March 11, 2022 (the “2022 POAP”). MDPT has been a part of the lives of Mr. Marshall and his late spouse Lynn Marshall (“Ms. Marshall”) for many years. The three of them were named as Trustees of a joint partner trust (the “JPT”) settled by Mr. Marshall and Ms. Marshall in 2008.
6Dr. Hollinger and MDPT began acting in their respective roles pursuant to the 2022 POAPC and the 2022 POAP (the “2022 Powers of Attorney”) in March 2022. Dr. Hollinger arranged for around-the-clock personal support workers (“PSWs”) for Mr. Marshall, and MDPT managed Mr. Marshall’s assets and paid his expenses.
7To the applicants’ surprise, on January 10, 2023, Mr. Marshall’s son, Thomas Patrick Marshall (“Thomas”), presented to MDPT a new Power of Attorney for Property, and to Dr. Hollinger a new Power of Attorney for Personal Care. In these documents, Thomas is named as Attorney for Property and Attorney for Personal Care. Thomas’s brother, Bryan David Marshall (“Bryan”) is named as the alternative Attorney on each. These Powers of Attorney were dated January 10, 2302 [sic]. A subsequent set of Powers of Attorney was drawn, on which the year was changed to “2023” (the “2023 Powers of Attorney”). [1]
8The applicants seek an order that the 2023 Powers of Attorney are invalid. In the alternative, if the court declines to invalidate the 2023 Powers of Attorney, the applicants seek guardianship orders respecting Mr. Marshall’s property and person.
9For the reasons that follow, I find that the 2023 Powers of Attorney are invalid, and the 2022 Powers of Attorneys are Mr. Marshall’s last valid powers of attorney.
Background Facts
Mr. Marshall’s Health and Family Relationships
10The applicants’ evidence, which is supported by Ms. Murray’s evidence, is that Thomas was estranged from his parents for the last 30 years or so. He spoke on the phone to Ms. Marshall occasionally but not to Mr. Marshall. Thomas had been living in a house in Arnprior, Ontario since the 1990s. The Arnprior residence is owned by Mr. Marshall. Mr. Marshall pays the expenses on the Arnprior residence, and Thomas does not pay rent to live there. Thomas did not permit his parents to visit him at the Arnprior residence, and Dr. Hollinger’s evidence is that when Mr. and Ms. Marshall tried to visit him there, he threatened them.
11Bryan lives in British Columbia and, according to Dr. Hollinger, saw his parents approximately once a year when they visited him there. Bryan rarely attended family gatherings, and he did not vacation with his parents and extended family.
12In December 2021, Ms. Marshall suffered a debilitating stroke. She moved into a long-term care home for palliative care in early 2022. Around the same time, Mr. Marshall’s ability to look after himself and his property declined. Family members, especially his cousin, Andrea Cullen (“Ms. Cullen”), came to his aid.
13In January 2022, Mr. Marshall nearly became the victim of a scammer, who requested a $42,000 bank draft allegedly to pay for a non-existing family member’s wedding gift. The police were called and intervened.
14In February 2022, Mr. Marshall was diagnosed with depression. At this time, he asked that $90,000 be distributed to him from the JPT so it could be paid to Bryan, which was done. Bryan had requested funds in the past to buy a house in Victoria, British Columbia.
The 2022 Powers of Attorney
15In the months that followed, Mr. Marshall asked MDPT if it would agree to make financial decisions on Mr. Marshall’s behalf, and it agreed. At the same time, Mr. Marshall asked Dr. Hollinger, who was already involved in Ms. Marshall’s personal care, if he would act as his attorney for personal care, and Dr. Hollinger agreed to take on that role.
16On March 11, 2022, Mr. Marshall executed the 2022 Powers of Attorney prepared and witnessed by a lawyer, Sylvia Tseng. On March 14, 2022, in a letter to MDPT, Mr. Marshall asked MDPT to begin acting under the 2022 POAP immediately. In the letter, Mr. Marshall stated: “As I am having difficulties managing my day-to-day finances as I focus on the care of my wife and am starting to have short term memory loss, it is my wish for MD Private Trust Company to being [sic] acting immediately.” Mr. Marshall also gave the following undertaking in the March 14, 2022, letter (the “Undertaking”): “If MDPT begins to act, I undertake not to revoke this appointment at a future date as I do not anticipate a change in my wishes or needs for this service.” MDPT began acting pursuant to the 2022 POAP on March 14, 2022. On the same day, Mr. Marshall resigned as a Trustee of the JPT.
Thomas’s Arrival in Oakville
17Ms. Marshall died on April 14, 2022. Thomas showed up at the Oakville Residence in the middle of the night shortly before the memorial service. Mr. Marshall called Ms. Cullen and expressed concern about Thomas’s sudden appearance.
18Thomas and Bryan attended Ms. Marshall’s memorial service.
19The applicants’ evidence is that Thomas stayed with Mr. Marshall for a few days during which time Mr. Marshall observed Thomas rifling through Mr. Marshall’s paperwork in the middle of the night. Mr. Marshall asked Thomas to leave, and he did.
20Mr. Marshall then asked MDPT not to send investment account statements to his home, and he advised MDPT that he did not want his sons to know about his financial affairs.
21Mr. Marshall also discussed with his family physician, Dr. Margaret Helen Found, his concerns about Thomas. Dr. Found included in her clinical notes the fact that Mr. Marshall was coping with the loss of his spouse and the disruption of Thomas’s return. Dr. Found also noted that Thomas was “looking for banking privileges”, and that Mr. Marshall told him that “it was in the hands of the trustee”, following which Thomas left the Oakville Residence.
Mr. Marshall’s Hospitalization and Return to the Oakville Residence
22On June 19, 2022, Mr. Marshall was hospitalized for repeated falls. On June 23, 2022, while a patient at Oakville Trafalgar Hospital, Mr. Marshall underwent a geriatric consultation by Dr. Tanja Bibic, who determined that Mr. Marshall likely had “cognitive impairment predating August [2021].” Dr. Bibic diagnosed Mr. Marshall as having “major progressive neurocognitive disorder [AKA dementia], of mixed etiology.” Dr. Bibic also reported that Mr. Marshall had “significant vascular burden, alcohol and other substance abuse, and clinically significant both amnestic and dysexecutive features.”
23In anticipation of Mr. Marshall’s return to the Oakville Residence on July 1, 2022, Dr. Hollinger made repairs and modifications to the residence for safety reasons, and he arranged for a PSW to live in at the Oakville Residence to assist Mr. Marshall. Extended family members brought meals for Mr. Marshall.
24In July 2022, Thomas paid another visit to the Oakville Residence, which caused Mr. Marshall concern. He reported to Dr. Hollinger and Ms. Cullen that he was afraid of Thomas and that he did not trust his sons with his finances.
25Following Mr. Marshall’s discharge from hospital, Thomas called Dr. Found’s office and reported Mr. Marshall’s memory deterioration and possible delusions, as well as accusations about stolen items.
26In the fall of 2022, Dr. Hollinger arranged for a PSW agency, Nurse Next Door, as opposed to a live-in PSW, to provide care to Mr. Marshall. Mr. Marshall decided that he would try retirement living in Oakville starting January 2023.
The Arnprior Residence
27As part of their management of Mr. Marshall’s property, MDPT tried to arrange an inspection of the Arnprior residence, where Thomas had been living since the 1990s. Two days before a scheduled visit, Thomas wished to reschedule, but MDPT insisted they inspect the property to ensure that proper steps were taken to insure the property’s value.
28In a telephone call between MDPT and Thomas, Thomas expressed a lot of anger about the gift of money that his parents had made to Bryan to purchase a home. Thomas considered himself as “out” that money.
29MDPT got access to the Arnprior residence on October 19, 2022. They discovered that nearly all the appliances did not work, there was no hot water, there were no smoke or carbon monoxide detectors, and the furnace had been disabled.
The Move to a Retirement Residence
30On December 3, 2022, Mr. Marshall had a seizure and was admitted to hospital. Dr. Hollinger kept Bryan informed of his father’s progress. Dr. Hollinger consented to various medical procedures on Mr. Marshall’s behalf when the attending physicians and a nurse practitioner deemed Mr. Marshall to be incapable of consenting to treatment.
31Just before Christmas 2022, Thomas showed up at the Oakville Residence uninvited. Thomas planned to stay.
32As planned, Mr. Marshall was going to attempt living in a retirement residence in January 2023. However, when the movers arrived to move some of Mr. Marshall’s property to the retirement residence, they were turned away, without any consultation with either Dr. Hollinger or MDPT. When Dr. Hollinger asked Mr. Marshall why he changed his mind about exploring the retirement residence option, Mr. Marshall could not say.
33On January 6, 2023, Thomas called Dr. Found. Dr Found recorded that Thomas had concerns about his father’s finances, concerns about his father moving into a home, and concerns about the plans being made for Mr. Marshall.
Meeting Between MDPT and Mr. Marshall
34On January 9, 2023, the day before a scheduled meeting between MDPT and Mr. Marshall, Thomas called MDPT to try to cancel the meeting. When Caroline Liu, of MDPT, asked to speak to Mr. Marshall, Thomas would not allow it. Thomas reported that Mr. Marshall was not available. Ms. Liu called back later and confirmed with Mr. Marshall a meeting at the Oakville Residence the following afternoon.
The 2023 Powers of Attorney
35On January 10, 2023, mere weeks after Thomas moved into the Oakville residence, Thomas drove Mr. Marshall and Tamanna Naime, a PSW, to a McDonald’s restaurant to meet with a lawyer, David Purdon, to sign the 2023 Powers of Attorney. The meeting, which lasted approximately 20 minutes, resulted from a telephone call to Mr. Purdon requesting a meeting among Thomas, Mr. Marshall, and Mr. Purdon. The call had taken place a few days earlier. Mr. Purdon suggested the McDonald’s restaurant out of a concern that Mr. Marshall would not have been able to climb the stairs at Mr. Purdon’s office.
36Mr. Marshall signed the 2023 Powers of Attorney, which had been prepared by Mr. Purdon in advance of the meeting. Mr. Marshall’s signature was witnessed by Mr. Purdon and a law clerk from his office, who is also Mr. Purdon’s daughter.
37Later in the day on January 10, 2023, Ms. Liu and others from MDPT attended at the Oakville Residence, as planned. The MDPT representatives observed that Mr. Marshall’s physical and cognitive health had declined significantly from when they had met with him the previous summer. They also observed that Thomas did not let his father out of his sight, and Thomas dominated the conversation.
38During this meeting, Thomas presented to the MDPT representatives the 2023 Powers of Attorney signed hours earlier. The 2023 Powers of Attorney named Thomas as Mr. Marshall’s Attorney for Property and his Attorney for Personal Care. Thomas claimed to be in charge of his father’s finances.
39Later that same day, Thomas advised Dr. Hollinger of the 2023 Powers of Attorney and that he would be managing his father’s personal care going forward. Dr. Hollinger responded that he did not believe that Mr. Marshall had the capacity to make a new power of attorney.
40Though Dr. Hollinger did not believe that the 2023 Powers of Attorney were valid, he and Thomas agreed that Nurse Next Door would continue to provide PSW services. However, contrary to Thomas’s agreement, and without notice to Dr. Hollinger, Thomas used the 2023 Powers of Attorney to terminate the Nurse Next Door services for Mr. Marshall, and Thomas refused to communicate with the Nurse Next Door PSW regarding a Discharge Report. Dr. Hollinger tried to re-hire the PSW who had worked for Mr. Marshall prior to the arrangement with Nurse Next Door, but this solution was only short term. Thomas purported to be taking care of Mr. Marshall himself.
Mr. Marshall and Thomas in the Oakville Residence
41For the next several weeks, Mr. Marshall and Thomas co-habited in the Oakville Residence. They did not have the assistance of a PSW. According to Dr. Hollinger’s evidence, Thomas would not entertain questions from Mr. Marshall’s friend and neighbour regarding Mr. Marshall’s health care. Thomas was angry about the money that Mr. and Ms. Marshall had given to Bryan years earlier to buy a house.
42On February 1, 2023, Ms. Liu, from MDPT, called to check on Mr. Marshall. According to Ms. Liu’s evidence, Mr. Marshall asked her whether she was his attorney for property, and what she knew about being an attorney for property. When Ms. Liu visited Mr. Marshall the next day, Thomas claimed to have fired all the PSWs because they were ineffective.
Mr. Marshall’s March 2023 Admission to Hospital
43Mr. Marshall was readmitted to hospital on March 23, 2023, but Thomas did not report this development to Dr. Hollinger and to MDPT. At that time, Dr. Armeen Jafri (Geriatric Medicine) diagnosed Mr. Marshall as having mixed delirium of unclear etiology. Dr. Jafri also regarded Mr. Marshall as at risk for prolonged delirium given his underlying dementia, and Dr. Jafri stated his belief that Mr. Marshall was more incapable than before. Dr. Jafri’s notes from that time show that Mr. Marshall had had a conversation with Thomas, during which Thomas said that he had noticed a major change in Mr. Marshall’s condition in April 2022, after Ms. Marshall died, including what Dr. Jafri described in his notes as “amnestic changes as well as executive dysfunction.” Dr. Jafri noted that Thomas had told him that Mr. Marshall was disoriented as to dates and had a distorted recall of things, and that Thomas had noticed some slurred speech in the last year.
44Dr. Found advised Dr. Hollinger that on Mr. Marshall’s discharge, Thomas was planning to move Mr. Marshall to Ottawa.
Court Orders
45On June 8, 2023, this court ordered that Mr. Marshall not be moved from hospital without a court order and that Dr. Hollinger be involved in all discussions regarding discharge planning.
46On July 18, 2023, Shael Eisen was appointed litigation guardian, as opposed to s. 3 counsel, for Mr. Marshall. The court agreed that a retrospective capacity assessment was needed.
47On August 18, 2023, this court ordered that Mr. Marshall’s discharge from hospital and placement in a private care home could be facilitated without a further court hearing.
48On August 24, 2023, this court granted an injunction against the use of the 2023 Powers of Attorney pending the outcome of this application, and it ordered that the applicants had exclusive authority to act pursuant to the 2022 Powers of Attorney for the time being. Accordingly, the applicants were able to have Mr. Marshall discharged and moved to Sunrise of Oakville retirement home.
The Issues
49The applicants submit that the following issues are to be determined on this application:
- Did Mr. Marshall lack the requisite capacity to make the 2023 Powers of Attorney such that they are invalid, of no force and effect, and should be set aside with the result that the 2022 Powers of Attorney are Mr. Marshall’s last valid Powers of Attorney for Property and Personal Care?
- In addition to, or in the alternative to 1 above, is the 2022 POAP valid as a result of the Undertaking?
- In the further alternative, if the 2023 Powers of Attorney are valid, should Dr. Hollinger and MDPT be appointed as Mr. Marshall’s Guardian of Personal Care and Guardian of Property, respectively?
Positions of the Parties
50The applicants submit that Mr. Marshall did not have capacity to make the 2023 Powers of Attorney, and that there were suspicious circumstances surrounding the making of the 2023 Powers of Attorney. Accordingly, they submit that the 2022 Powers of Attorney are Mr. Marshall’s last valid Powers of Attorney. In the alternative, MDPT submits that the 2022 POAP is Mr. Marshall’s only valid Power of Attorney for Property because, by virtue of the Undertaking, he was contractually bound not to revoke it. In the further alternative, the applicants submit that if the 2023 Powers of Attorney are found to be valid, Dr. Hollinger and MDPT should nevertheless be appointed as Guardian of Mr. Marshall’s person and Guardian of his property, respectively.
51The applicants also submit that if they are appointed Guardians, their respective Guardianship Plan and Management Plan should be approved.
52Thomas and Bryan take no position on the validity of the 2023 Powers of Attorney.
53Though not a party, Mr. Purdon filed an affidavit in this proceeding, in which he adduces evidence in support of his position that the 2023 Powers of Attorney are valid, and his position that Mr. Marshall had capacity when he signed the Powers of Attorney, and Mr. Marshall was not being unduly influenced.
Law
54According to the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”), s. 8(1):
A person is capable of giving a continuing power of attorney for property 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 dependents; 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 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.
55According to the SDA, s. 47(1):
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.
56Where there are suspicious circumstances surrounding the preparation of a power of attorney, the presumption of capacity under s. 2 of the SDA does not operate, and the burden of proof regarding the capacity shifts to the grantee of the power of attorney: Nguyen-Crawford v. Nguyen, 2010 ONSC 6836, 71 E.T.R. (3d) 55, at para. 85; Vanier v. Vanier, 2016 ONSC 4620, 22 E.T.R. (4th) 1, at para. 11, aff'd 2017 ONCA 561, 28 E.T.R. (4th) 1, and Stewart v. Zawadzinski, 2023 ONSC 387, 87 E.T.R. (4th) 99.
57Suspicious circumstances may arise from a) circumstances surrounding the preparation of the document; b) circumstances tending to call into question the capacity of the grantor; or c) 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 p. 25.
58In 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 v. Brown, 2021 ONSC 3366, 155 O.R. (3d) 750, at paras. 89, 93-125, appeal dismissed 2023 ONCA 151, 167 O.R. (3d) 374.
Did Mr. Marshall have capacity to make the 2023 Powers of Attorney?
59Based on the evidentiary record, I find that Mr. Marshall did not have capacity to make the 2023 Powers of Attorney.
60I also find that there were suspicious circumstances surrounding the making and execution of the 2023 Powers of Attorney, and there were circumstances tending to call into question Mr. Marshall’s capacity to make the 2023 Powers of Attorney. Mr. Marshall was also vulnerable to undue influence at the time the 2023 Powers of Attorney were made.
61Mr. Marshall was both physically and mentally impaired when he made the 2023 Powers of Attorney in January 2023. At that time, and since March 2022, MDPT and Dr. Hollinger had been assisting Mr. Marshall with his finances and personal care. Mr. Marshall had specifically asked them to use the powers of attorney he had granted to them because he recognized his own decline in cognitive function.
62In June 2022, Dr. Bibic diagnosed Mr. Marshall as having dementia, and she also diagnosed him as having “moderate to moderate advancing major progressive neurocognitive disorder.” Dr. Bibic noted that Mr. Marshall needed supervision for most of his daily activities. By December 2022, Mr. Marshall needed full-time PSWs to assist him 24 hours a day. Mr. Marshall’s 2022 hospital discharge report indicated that Mr. Marshall had a “resolving delirium.”
63In addition, the 2023 Powers of Attorney mark a significant departure from the 2022 Powers of Attorney. The 2023 Powers of Attorney removed both Dr. Hollinger and MDPT as Attorneys and replaced them with Thomas and, in the alternative, Bryan. This is noteworthy in light of the evidence that a few months prior to signing the 2023 Powers of Attorney, Mr. Marshall confided in Dr. Hollinger, MDPT representatives, and Ms. Cullen that he did not want either of his sons involved in his finances, and he did not want MDPT to share any of his financial statements, including his quarterly investment statements, with Thomas and Bryan.
64The circumstances around the making of the 2023 Powers of Attorney give rise to suspicion. The 2023 Powers of Attorney were made only three months after Thomas’s angry assertions that Bryan had received significant funds from Mr. Marshall, and Thomas was “out” that money. A few weeks later, after decades of estrangement, Thomas moved into the Oakville Residence, and a week after that, the movers were prevented from transporting some of Mr. Marshall’s furnishings to a retirement home. The applicants submit that the movers told them that both Thomas and Mr. Marshall prevented the move of the furnishings, but Thomas’s evidence is that Mr. Marshall unilaterally prevented the move of any of his belongings to a retirement home. The 2023 Powers of Attorney were made four days after Thomas had called Dr. Found to express his dissatisfaction with decisions being made on his father’s behalf. Also, the 2023 Powers of Attorney were executed the morning of the day that MDPT and Mr. Marshall had agreed to meet Mr. Marshall and Thomas to discuss Mr. Marshall’s living arrangements.
65Further, Thomas, a grantee under the 2023 Powers of Attorney, was very involved in the making of the 2023 Powers of Attorney. It was Thomas who contacted Mr. Purdon to initiate the request for new powers of attorney and who drove Mr. Marshall to the meeting with Mr. Purdon. It was also Thomas who advised Mr. Purdon of the error in the date on the 2023 Powers of Attorney. Mr. Purdon had Thomas’s email and address on file, but he did not have the same for Mr. Marshall.
66Given the presence of these suspicious circumstances, the presumption of capacity does not apply. The burden of proof regarding the capacity shifts to the grantee of the power of attorney: Nguyen-Crawford v. Nguyen, at para. 85, and Stewart v. Zawadzinski.
67However, Thomas and Bryan are not propounding the 2023 Powers of Attorney. At a case conference on November 30, 2023, Thomas and Bryan, in effect, acknowledged that the 2023 Powers of Attorney could not stand. Justice Myers’ endorsement from that day states: “[t]he respondents [Thomas and Bryan] will not be presenting medical evidence to challenge the expert’s conclusion that Larry Marshall lacked capacity when he signed the powers of attorney in January 2023 that are the subject matter of this application”. At this hearing, Thomas and Bryan take no position on the validity of the 2023 Powers of Attorney.
68Based on the transcript from Mr. Purdon’s cross-examination, Mr. Purdon did not ask probing questions of Mr. Marshall to assess his capacity to grant the 2023 Powers of Attorney. For example, Mr. Purdon did not ask about Mr. Marshall’s assets (valued at approximately $5 million); he did not know that MDPT had been managing Mr. Marshall’s property for approximately 10 months; he did not know that Mr. Marshall had signed a document in which he agreed not to revoke the 2022 POAP; and he did not have a copy of the 2022 POAP. Mr. Purdon did not explore in-depth Mr. Marshall’s reasons for wanting to change his Attorney for Property from MDPT to Thomas. Also, Mr. Purdon did not ask Mr. Marshall whether he had a Power of Attorney for Personal Care in place and, therefore, he did not explore with Mr. Marshall his reasons for removing and replacing Dr. Hollinger as his Attorney for Personal Care.
69Based on the same transcript, it appears that Mr. Purdon’s questioning of Mr. Marshall was perfunctory. As a result, Mr. Purdon did not know that Mr. Marshall had been diagnosed with dementia; that there were issues relating to Mr. Marshall’s memory and cognition; that Mr. Marshall’s driver’s licence had been suspended after he got lost on a trip to his long-time barber and abandoned his car to walk, only to be rescued by the police; that Mr. Marshall had been hospitalized with delirium in June 2022 and December 2022; that Mr. Marshall had PSW assistance around the clock; that Mr. Marshall had been supporting both Thomas and Bryan, financially; that Mr. Marshall had been planning to move into a retirement home, but the plan was aborted days earlier, following Thomas’ move into the Oakville Residence; and that Thomas had been estranged from Mr. Marshall for nearly 30 years.
a) The 2023 Power of Attorney for Property
70Based on the foregoing, I am satisfied that there is no evidence to show that when Mr. Marshall made the 2023 Power of Attorney for Property, he was aware of the nature and extent of his property or the obligations he owed to his dependents. Mr. Purdon asked Mr. Marshall no questions in this regard, and Mr. Marshall volunteered nothing. Based on Mr. Purdon’s cross-examination, he appears to have been persuaded that because Thomas and Bryan are Mr. Marshall’s sons, they would be suitable attorneys for property for Mr. Marshall.
71By contrast, there is convincing evidence that Mr. Marshall did not have the capacity to make the 2023 Power of Attorney for Property in January 2023. Dr. Fiona Menzies prepared a retrospective capacity assessment, dated August 6, 2023, in which she concluded that “[Mr. Marshall] would have had a moderately severe dementia at the time, would have been recovering from a recent delirium precipitated from an alcohol-induced seizure and he was highly susceptible to undue influence being exerted for him to make new POAs.”
72Dr. Menzies relied on available medical records and affidavits relating to this application, as well her meeting with Mr. Marshall, in the preparation of her report. She observed that when she met with Mr. Marshall, he was not oriented to time or location, and he could not say how he got to the hospital. Dr. Menzies concluded that given Mr. Marshall’s poor executive function in June 2022 (when Mr. Marshall’s driver’s licence was suspended), he would not have had the capacity to designate attorneys for property on January 10, 2023. Dr. Menzies reported that after each delirium in June 2022 and December 2022, Mr. Marshall’s cognitive abilities would have been significantly affected.
73Other evidence in support of Mr. Marshall’s lack of capacity to make a power of attorney can be found in Rena Postoff’s report, released following her meeting with Mr. Marshall on August 2, 2023. Ms. Postoff, a designated capacity assessor, reported that Mr. Marshall estimated the value of his $2 million Oakville Residence to be $400,000. He could not tell her the value of any of his investments. Mr. Marshall could also not tell Ms. Postoff how he was supporting his sons financially, and he reported that Thomas was born in 1920, and Bryan in 1921, which is inaccurate. Mr. Marshall himself was born in 1941. Ms. Postoff concluded that Mr. Marshall was incapable of managing his property.
74In my view, there is a wealth of evidence to support the fact that Mr. Marshall did not have capacity to revoke the 2022 POAP (which, in any event, he had specifically undertaken not to revoke), and to make the 2023 Power of Attorney for Property. Mr. Marshall’s lack of capacity and dependency on others left him vulnerable to undue influence.
75Having found that Mr. Marshall did not have capacity to make the 2023 Power of Attorney for Property, it is not necessary for me to comment on the effect of the Undertaking on Mr. Marshall’s ability to revoke the 2022 POAP.
b) The 2023 Power of Attorney for Personal Care
76The same suspicious circumstances that surrounded the preparation and execution of the 2023 Power of Attorney for Property were present when the 2023 Power of Attorney for Personal Care was prepared and executed. The circumstances tending to call into question the capacity of the grantor and to show Mr. Marshall’s vulnerability to undue influence were similarly present. Accordingly, the onus would be on Thomas and Bryan to prove, in accordance with the test set out in the SDA, s. 47(1), that Mr. Marshall had the ability to understand that the person to whom he was granting the 2023 Power of Attorney for Personal Care had a genuine concern for his welfare, and to prove that Mr. Marshall appreciated that he may need to have his attorney for personal care make decisions for him. Thomas and Bryan have not met this onus. They take no position on the validity of the 2023 Power of Attorney for Personal Care.
77The applicants rely on the decision in Lockhart v. Lockhart, 2020 ONSC 4667 [2], where the court held that an optimum opportunity to assess the grantor’s capacity to make a power of attorney arises at the time the power of attorney is being signed. The lawyer who prepared the document and who will witness the signing of the document is well placed to ask probing questions of the grantor to assess whether the grantor has capacity.
78However, the applicants assert that Mr. Purdon did not take this opportunity. He did not ask Mr. Marshall whether the proposed attorneys for personal care had a genuine concern for his welfare, nor did he ask Mr. Marshall whether he appreciated that Thomas and Bryan may need to make personal care decisions for him.
79For example, Mr. Purdon did not inquire as to whether Mr. Marshall had already made a power of attorney for personal care and, therefore, he did not explore Mr. Marshall’s rationale for removing Dr. Hollinger and appointing Thomas and whether his rationale was cogent. Mr. Purdon appears to have accepted Mr. Marshall’s account of Thomas having recently moved in with Mr. Marshall and taken over his care, without asking what care arrangements had been in place before Thomas’s arrival and what the current care arrangements were. Based on the evidence, Mr. Purdon did not appreciate that Mr. Marshall and Thomas had been estranged for decades, and Bryan was an infrequent visitor. Neither of Mr. Marshall’s sons came to his assistance when their mother, Ms. Marshall, was dying. Mr. Purdon was seemingly unaware that Mr. Marshall had expressed some fear of Thomas. With the benefit of information about Mr. Marshall’s current living situation and his relationships with Thomas and Bryan, Mr. Purdon would have been in a better position to assess Mr. Marshall’s understanding of whether Thomas and Bryan had a genuine concern for Mr. Marshall’s welfare.
80The ability of Mr. Marshall to have insight into whether Thomas and Bryan had a genuine concern for his care was also likely compromised by Mr. Marshall’s lack of capacity. This was evidenced by his paranoid delusions about Dr. Hollinger, as described by Dr. Menzies in her report. Dr. Menzies reported that Mr. Marshall was expressing fear that Dr. Hollinger was trying to steal Mr. Marshall’s money. But this was not rational because Dr. Hollinger had no access to or authority over Mr. Marshall’s money.
81I find it more likely than not that Mr. Marshall’s paranoid thinking and lack of capacity prevented him from assessing whether Thomas and Bryan, the proposed attorney for personal care and alternative, had a genuine concern for his welfare. Unfortunately, Mr. Purdon cannot add to the evidence on this issue because it appears that he did not ask probing questions to test Mr. Marshall’s understanding on the point.
82The second part of the test for capacity to grant a power of attorney for personal care is whether the grantor appreciated that his proposed attorneys for personal care may need to make personal care decisions on his behalf.
83Dr. Menzies’s evidence on this point is helpful. In her report, she concluded that she did not believe that Mr. Marshall would have had the executive function to appreciate that his proposed attorneys for personal care, Thomas and Bryan, would need to make personal care decisions on his behalf. Mr. Purdon’s evidence is that he did explain to Mr. Marshall that, at some time in the future, Mr. Marshall may need Thomas to make decisions for him. Given that Mr. Marshall had forgotten that he had appointed Thomas as his Attorney for Property less than one month earlier, it seems unlikely that Mr. Marshall appreciated, when he signed the 2023 Power of Attorney for Personal Care, that he was delegating to Thomas decision-making power respecting health care, nutrition, shelter, clothing, hygiene, and safety.
84Further, Dr. Jafri’s April 28, 2023 consultation record shows that, weeks after granting the 2023 Power of Attorney for Personal Care to Thomas, Mr. Marshall did not appreciate that he had granted that power to Thomas. Dr. Jafri noted Mr. Marshall’s confusion in his inconsistent statements. He stated both that he wished to return to live at his Oakville Residence and that Thomas was looking at retirement homes for him in Ottawa.
85For the foregoing reasons, I find that Thomas and Bryan have not met their onus to show that Mr. Marshall had the ability to understand that the persons to whom he was granting a power of attorney for personal care had a genuine concern for his welfare, and that Mr. Marshall appreciated that his attorney for personal care may need to make personal care decisions for him.
Guardianship
86Having concluded that Mr. Marshall did not have capacity to make the 2023 Power of Attorney for Property or the 2023 Power of Attorney for Personal Care, I do not need to consider the respective submissions of Dr. Hollinger and MDPT to be appointed as Guardian of Mr. Marshall’s Person and Guardian of Mr. Marshall’s Property, respectively. The 2022 Powers of Attorney were not revoked by the 2023 Powers of Attorney. The former remain the last valid Powers of Attorney made by Mr. Marshall.
Disposition
87The following orders shall issue:
- an order declaring the Power of Attorney for Property, dated March 11, 2022, made by Mr. Marshall appointing MDPT as Attorney for Property to be Mr. Marshall’s last valid Power of Attorney for Property;
- an order declaring the Power of Attorney for Personal Care, dated March 11, 2022, made by Mr. Marshall appointing Dr. Hollinger as Attorney for Personal Care, and Ms. Murray, as his alternative Attorney for Personal Care to be Mr. Marshall’s last valid Power of Attorney for Personal Care;
- an order declaring the Power of Attorney for Property dated January 10, 2023, invalid and of no force and effect; and
- an order declaring the Power of Attorney for Personal Care, dated January 10, 2023, invalid and of no force and effect.
Costs
88Each of the applicants has incurred considerable costs in pursuing this application. However, in the face of the 2023 Powers of Attorney, and Mr. Purdon’s affidavit in support of those Powers of Attorney, they had little option but to do so. Their efforts in advancing the application involved gathering evidence, obtaining a capacity assessment and a retroactive capacity assessment, and arranging for the appointment of a litigation guardian for Mr. Marshall. They also prepared a Guardianship Plan in respect of Mr. Marshall’s personal care and a Management Plan in respect of Mr. Marshall Property to support their request for guardianship orders, if necessary.
89The applicants submit that the application was made necessary as a consequence of Mr. Purdon’s acts and omissions relating to the 2023 Powers of Attorney. The applicants are not seeking costs against Thomas or Bryan. As fiduciaries, they seek costs on a full indemnity basis from Mr. Marshall’s property.
90Based on its Bill of Costs, MDPT seeks costs of $122,437.75, on a full indemnity basis, inclusive of disbursements and HST. Of this amount, the disbursements total $15,784.75, which includes the costs of Dr. Menzies’s expert report and of Rena Postoff’s expert report, totalling $10,519.25, before tax.
91Based on his Bill of Costs, Dr. Hollinger seeks costs of $119,407.08, on a full indemnity basis, inclusive of disbursements and HST. Of this amount, $1,497.23 is on account of disbursements, before tax.
92Having regard to the factors engaged under r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, including the result, the amounts in issue, and the complexity, I fix MDPT’s costs at $122,437.75, inclusive of disbursements and HST. And I fix Dr. Hollinger’s costs at $119,407.08, inclusive of disbursements and HST. These costs shall be paid from Mr. Marshall’s property within 30 days.
93Based on the record, with the exception of Mr. Eisen’s most recent invoice, the litigation guardian’s costs have been paid by MDPT from Mr. Marshall’s property. Having found the 2022 POAP to be Mr. Marshall’s last valid Power of Attorney for Property, this process can continue.
94Thomas and Bryan submit that they too have incurred significant legal costs as a result of their reliance on the 2023 Powers of Attorney, and their reliance on Mr. Purdon’s affidavit in support of the validity of the 2023 Powers of Attorney. I decline to award Thomas and Bryan any costs from Mr. Marshall’s property.
Dietrich J.
Released: February 21, 2024
Footnotes
1The evidence is inconsistent regarding when and where the revised Powers of Attorney were signed by Mr. Marshall and the witnesses.
2Appeal dismissed in Lockhart v. Lockhart, 2021 ONCA 329; leave to appeal to the SCC denied: [2022] S.C.C.A. No. 57.