Elderly husband’s money is missing as wife sets off to Trinidad
The Guardianship Order at issue in Tanti was first granted in 2019. The subject of the order, Mr. Tanti, is now 92 years old. His wife, Ms. Joseph, is much younger than him. Mr. Tanti’s son, Raymond, requested the Guardianship Order after alleging that $600,000 was missing from his father’s finances. Raymond, who had Power of Attorney and managed his father’s finances, was concerned that Ms. Joseph had taken the money. Furthermore, Ms. Joseph had gone to Trinidad for two weeks. Raymond alleged that Ms. Joseph had fled with the money and left Mr. Tanti without medical and personal care.
Husband’s counsel raised concerns about lack of plan for care
The temporary Guardianship Order ended up staying in place for three years, longer than was intended. Ms. Joseph applied to the Superior Court to set the order aside so she could manage Mr. Tanti’s affairs under a Power of Attorney granted to her. However, Raymond argued that setting the order aside would create a gap in Mr. Tanti’s care, given that there were conflicting Powers of Attorney (as he also had a Power of Attorney over his father’s care).
Mr. Tanti’s counsel did not take a position concerning setting aside the Guardianship Order. However, she submitted several concerns for the Court’s consideration:
- There was overwhelming evidence of Mr. Tanti’s incapacity, both in terms of his personal care and his property;
- There was no detailed evidence about Ms. Joseph’s plan for where she and Mr. Tanti would live together, the suitability of their residence for Mr. Tanti’s medical needs, and how Ms. Joseph planned to attend to Mr. Tanti’s medical services;
- The existence of two conflicting Powers of Attorney between Raymond and Ms. Joseph, which had different end-of-life provisions;
- The Court would be unable to deal with the issue of the validity of the two Powers of Attorney due to a lack of evidence; and
- Given Raymond and Ms. Joseph’s inability to cooperate, having them split responsibility for Mr. Tanti’s personal care and property.
Elder care too important an issue to have order granted in party’s absence
The Court determined that the Guardianship Order must be set aside because it was intended to be a temporary measure to protect Mr. Tanti’s finances and to provide care while his wife was away. There was never a proper guardianship hearing since Ms. Joseph was not present when the order was made. Since she could not make any submissions to the Court when the order was made, the Court found that the order could not form the status quo.
The Court stated that it was in Mr. Tanti’s best interests to have both his son and wife be heard at a guardianship hearing. As a result, the Guardianship Order was set aside on procedural fairness concerns, with the Court stating:
“… there is no appearance of justice in having something as important as elder care decided on a quasi-permanent basis (three years running) and with only one side participating in the hearing.”
Furthermore, the Court noted that the concerns upon which the Guardianship Order was granted were no longer present, as Ms. Joseph had not stolen $600,000 from Mr. Tanti and fled to Trinidad. The Court concluded that the order would not have been granted if the complete picture had been available at the time of the original hearing.
Guardianship Order set aside with grace period to avoid gap in care
In ordinary circumstances, a Power of Attorney would govern the arrangements for Mr. Tanti’s personal care and property. However, in this case, there were competing Powers of Attorney with insufficient evidence for the Court to determine their validity.
Ms. Joseph did not request a new Guardianship Order. Therefore, the Court determined that the setting aside of the order would be stayed for 90 days to allow the parties to find a solution that would be in the best interest of Mr. Tanti.
Based on medical evidence, the Court ordered on a final basis that Mr. Tanti was incapable of managing himself and his property. It also directed the parties to avoid further unnecessary litigation and focus on protecting Mr. Tanti’s finances and finding a solution in his best interests. The Court explained that the parties must decide whether they wanted to pursue guardianship or resort to one of the Powers of Attorney but cautioned that the Court would not accommodate both.
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