I have previously written about the issue of applications to remove co-trustees or co-executors. On occasion, applications are also made to remove attorneys named in a power of attorney or representatives named in a health care representation agreement.

In Stockall (Re) 2023 BCSC 437, the donor was 93 and suffered from a number of medical ailments including advanced dementia. He had six children, and he named two of his daughters as his attorneys under an enduring power of attorney, and health care representatives under a health care representation agreement. The two sisters sought to remove each other.

There was a great deal of conflict between the two sisters, and they were described as “bitterly divided.” There was disagreement on issues relating to the care that each of them provided for their father, whether their father’s home should be sold to finance his care and where he should live, accounting of spending of their father’s monies, and alleged alienation of their father.

The Court held that the present arrangement of both parties acting as attorneys and representative could not continue. The Court held that the circumstances were analogous to a hearing to appoint a committee (a person to manage the affairs and care of an incapable person). A committeeship application requires affidavits from two physicians confirming that the patient is incapable, which could not be obtained in this case (otherwise the daughters likely would have applied to be committee instead).

The considerations for the selection of an appropriate committee include the following non-exhaustive list:

1. whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;
2. whether immediate family members are in agreement with the appointment;
3. whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;
4. the level of previous involvement of the proposed committee with the patient, usually family members are preferred;
5. the level of understanding of the proposed committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;
6. whether the proposed committee will provide love and support to the patient;
7. whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient’s benefit;
8. whether a proposed committee has breached a fiduciary duty owed to the patient, or engaged in activity which diminishes confidence in that person’s abilities to properly handle the patient’s affairs;
9. who is best to advocate for the patient’s medical needs;
10. whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; and
11. whether a division of responsibilities such as between the patient’s estate and the patient’s person to different persons would serve the best interests of the patient, or would such a division be less than optimal for the patient.

The Court in Stockall considered all of the facts, including the allegations made by each sister, and the care provided by each of them so far. The Court observed that one of the sisters had more support from other family members, and it was likely that this sister would at least continue to consult and communicate with the siblings who supported her position (who form a majority).

While it was not possible to give effect to the father’s desire to have both daughters continue to act, he did express his preferred care arrangement when he entered into a private care agreement with one of his daughters. This was given considerable weight. The only way to give that agreement practical effect was to make the daughter with who he made the agreement the sole attorney and representative. The other daughter was removed.

The daughter that was removed had also failed to advise the court that her father had been hospitalized, which was an “obviously relevant circumstance.” This was described as showing extremely poor judgment, deceptive and akin to a breach of fiduciary duty.

Just like a decision to name more than one person to act together as an executor or a trustee, care must be taken when selecting attorneys and representatives who can work together.