The question is often raised of what can be done when an attorney under a Power of Attorney is taking actions which are questionable or of concern.  Such actions can include unusual bank withdrawals or financial mismanagement.  Not just any individual can make a claim challenging what the attorney is doing.

In accordance with Section 42 of the Substitute Decisions Act there is a list of individuals who may apply to the court to make an attorney disclose what exactly what they are doing with the individual’s assets.  The list of individuals includes the following:

  • The grantor;
  • The grantor’s or incapable persons’ guardian of the person or attorney for personal care;
  • A dependant of the grantor or incapable person;
  • The Public Guardian and Trustee;
  • The Children’s Lawyer
  • A judgment creditor of the grantor or incapable person; or
  • Any other person, with leave of the court.

Unless you fall into one of the categories above, in order to get an account from attorney, you may have to obtain leave of the court.  The court, in the case of Ali v. Fruci, 2006 CanLII 8719 (On S.C.) noted a two-part test to be used to determine whether a person may bring an application for the passing of an attorney’s accounts.  The test is as follows:

  1. the applicant must have a genuine interest in the welfare of the grantor of the Power of Attorney; and
  2. it must be reasonable to believe that a court hearing the mater may order the attorney to pass his or her accounts.

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