of having carefully drawn-up powers of attorney for both personal care and
property matters has been emphasized by a recently published decision of the
Superior Court of Justice.
This important matter has also been emphasized by the publication of the story
of a Toronto woman's battle against a lawyer who stole funds from her mother's
In 1998, Joyce appointed her two daughters as attorneys under a power of
attorney for personal care. (That document is sometimes incorrectly called a
"living will." A living will only addresses treatment wishes and does not need
to name someone to carry them out.)
Three years later, Joyce was diagnosed with Alzheimer's disease and placed in
Later, she was placed on a ventilator and fed intravenously.
Her doctor met with the daughters and proposed that the ventilator and IV
tubes be disconnected because of the "terrible toll" and "discomfort" they
caused to the mother.
The medical team became convinced that the burdens imposed on Joyce and what
they considered the lack of lasting beneficial effects outweighing the
benefits of her treatment. But the daughters refused to consent to this
The doctor then asked the Consent and Capacity Board to overrule the wishes of
the daughters and allow them to disconnect the life support.
After hearing the evidence, the tribunal decided that the daughters were not
acting "properly" and instructed them to consent to withholding the procedures
which would prolong their mother's life.
The daughters appealed to the Superior Court.
Justice Maurice Cullity ruled that the governing factor was what was in the
patient's best interests. Joyce's daughters told the board that their mother
had always expressed a belief in prolonging life.
The board was told that Joyce was Roman Catholic and believed in the sanctity
of human life, but it decided that her religious beliefs were irrelevant
because the church recognized the right to die with dignity.
Cullity overruled the board. He found that the patient's beliefs were more
important than whether they correctly reflected the teachings of the church.
In addition, the board misunderstood the medical evidence and its decision was
based on incorrect facts.
The lesson of the case is that in preparing a power of attorney for personal
care, special consideration should be given to expressing whether life should
be artificially prolonged in the event of a terminal illness.
Another lesson in powers of attorney comes from the publication this year of
The Heiress vs. The Establishment: Mrs. Campbell's Campaign for Legal
Justice, by Constance Backhouse, a law professor at the University of
Ottawa, and Justice Nancy Backhouse of the Superior Court of Justice in
Toronto (published for the Osgoode Society for Canadian Legal History by UBC
Elizabeth Bethune Campbell was a Toronto-born socialite famous in the 1920s.
In 1884, her father, who was a prominent barrister and law society bencher,
died, leaving between $40,000 and $60,000 (an enormous sum in those days) to
his widow, also named Elizabeth, who later married Sir William Howland,
becoming Lady Howland.
At the time, William Hogg was a pillar of the Toronto legal community. A law
society bencher, he was respected throughout the legal profession and Ontario
society. For decades he administered Lady Howland's funds, effectively acting
as a power of attorney for her. When Lady Howland died in 1924, her estate was
only $17,450, an amount that seemed to her daughter, Elizabeth Campbell, to be
substantially lower than it should have been.
For 13 years, Campbell was involved in litigation with Hogg and the Toronto
General Trusts Corp. over the missing money and several "fictitious
mortgages." Ultimately, she lost in every Ontario court. Unable to find a
lawyer to represent her, she took the case herself to the Privy Council, the
court of last resort in the British Empire at the time.
In London, Campbell achieved some celebrity status when she won her case and
triumphed over the establishment that had fought her for so long.
Despite the council's ruling that missing money had to be returned, the law
society of the time never took any action against Hogg.
The Heiress vs. The Establishment makes history come alive, firstly in
Campbell's own words through the reprinting of her own 1940 self-published
memoirs, Where Angels Fear to Tread, and then through an extensive and
fascinating commentary on the case by the Backhouse sisters.
It's the best book I've read this year. Amidst all the fascinating social and
legal background of the book, its message for Canadians today is to be very
careful in choosing someone to act as power of attorney for property.
Bob Aaron is a Toronto real estate lawyer. He can be reached by e-mail at
email@example.com, phone 416-364-9366 or fax
416-364-3818. Visit http://www.aaron.ca.