Sometimes the person appointed to take care of a family members finances, health or in charge of a deceased’s estate is not the best person for the job. When this happens, there is recourse to go to court and seek to remove this person and appoint someone better suited for the position.

What is a power of attorney?

An attorney is appointed by a power of attorney document and acts as a fiduciary. This means they must act with reasonable care, account, and not be in conflict with the grantor (the person who signed the power of attorney document).

As long as the grantor is capable, they may sign a power of attorney and choose his/her attorney to act on his/her behalf in the event of incapacity (or if capable and unavailable). The Substitute Decisions Act, 1992 (SDA) governs substitute decision-making and created two planning documents: continuing power of attorney (governing property) and power of attorney for personal care.

What is a guardian?

A guardian is a person appointed by the court and manages the affairs of an incapable person. There are two procedures for becoming a court-appointed guardian of property, “standard procedure” and “summary disposition procedure.”

What is a trust?

A trust is simply an obligation (in equity) binding a person (the trustee) to deal with property over which they have control (property of the trust) for the benefit of persons (the beneficiaries or “cestuis que trust”). A trust isn’t a legal entity – it’s a relationship between the trustees and the beneficiaries. The person who creates the trust is called the settlor.

What is an estate trustee?

The estate trustee is a representative of the estate who has the sole authority to bind the estate. They act as a fiduciary - meaning they have an obligation to act in the best interest of the estate.

Their role is to administer the estate and to:

• Attend to funeral arrangements
• Prove the will (if applicable)
• Protect estate assets
• Pay creditors, satisfy liabilities (such as taxes)
• Distributing specific bequests and residue of the estate

Removal of Fiduciaries

The process differs slightly depending on whether the removal is for an attorney, guardian, trustee or estate trustee. Generally, a notice of application would be commenced and on such an application, the court may appoint a replacement (or replacements) to act in the place of the fiduciary who is removed.

What to do next

We understand that this is a difficult time for you and your family and this is merely a brief overview of the law regarding attorney, guardian, trustee or estate trustee disputes. Your best interest is our main concern and we make sure to adopt cost-effective solutions in a timely manner.

We will explain your rights and options in a manner that is easy for you to understand.

We also offer a free consultation, which is an opportunity for you to speak to a lawyer before making any commitment. Call us for a free consultation on (416) 868-3263.