Estate Planning

NO DUTY OF CARE OWED

By Hull and Hull LLP

In a recently reported decision by the Superior Court of Justice, the Honourable Justice Newbould considered the issue of whether a solicitor who drafts a Power of Attorney owes a duty of care to the Grantee of the Power of Attorney.

In Barbulov v. Huston, the defendant was the solicitor for the plaintiff's father. 

The father attended at the defendant solicitor's office to execute a Power of Attorney for personal care and for property. The plaintiff was present with his father at this meeting. Some thirteen years after the father's Power of Attorney for personal care was signed, the father suffered from brain damage, which impaired his ability to communicate or interact with others.

The plaintiff reviewed the Power of Attorney, but then realized that it did not reflect his father's wishes and was concerned that the Power of Attorney would be used to terminate his father's life support.  At the Consent and Capacity Board hearing, the attending physician for the father proposed a revised plan of treatment with reduced medical intervention in accordance with the Power of Attorney. The plaintiff appealed this decision and spent $30,000.00 on the appeal. The plaintiff sued the defendant solicitor alleging that he was negligent in drafting the power of attorney as it did not properly reflect the intentions of his father. The plaintiff sought damages for the legal expenses incurred by him in unsuccessfully appealing the decision of the Consent and Capacity Board.

Justice Newbould held that the defendant solicitor did not owe a duty of care to the plaintiff son. In his decision, Justice Newbould justified his decision by stating that the defendant solicitor 'did not undertake to look after the plaintiff's interests. He was concerned solely with the interests of the plaintiff's father. The plaintiff was acting in the meetings with the defendant as a translator or messenger on behalf of his father. He was not there in any personal capacity with a separate interest that needed protection. There would not have been any expectation that the defendant was looking out for the plaintiff's interest, and there was no representation that he was.'

Full post as published by Toronto Estate Law Blog on June 11, 2010 (boomark / email).