Husband holding wife's power of attorney had no duty to tell her daughter of hospitalizations and death
A person acting under a power of attorney for personal care owes no duty of care to the incapable grantor’s adult child, the Court of Appeal for Ontario has ruled.
In McNeill v. Phillips, 2026 ONCA 652, released Sept. 15, a panel of Justices Bradley Miller, Gary Trotter and Jill Copeland dismissed Sandra McNeill’s appeal from a Superior Court order striking her claim against Kenneth Phillips.
Phillips was married to McNeill’s mother, but is not McNeill’s father. He held the mother’s power of attorney for personal care. McNeill, who was in her late 50s when her mother died in December 2024, alleged that Phillips failed to tell her about her mother’s hospitalizations and death, did not let her see her mother in the hospital once her mother became incapacitated, and kept her from attending a viewing by refusing to move it to a date she could attend.
She framed the claim in negligence, pleading that Phillips owed her a duty to inform her of her mother’s illness and death.
“My client was the deceased’s only biological child and had a good relationship with her mother,” says Soumya Roop Sanyal of Toronto’s Saachi Law Office PC, counsel for McNeill. “Phillips stonewalled her attempts to see her mother.”
Sanyal argued that a duty of care arose from the Substitute Decisions Act, which requires those acting for an incapable person to perform their duties diligently and in good faith for that person’s benefit, and to foster contact between the incapable person and supportive family members.
“Our position was that Phillips was obliged to act in accordance with the mother’s wishes,” he says, “And that, knowing of the mother-daughter relationship, he acted contrary to it and failed to act in good faith.”
The motion judge, Justice Susan Healey, rejected that framework. Once the power of attorney was invoked, she found, Phillips’s sole duty as attorney ran to the grantor – his wife – to follow the directives in the power of attorney and the law under the Substitute Decisions Act and the Health Care Consent Act. The law did not require an attorney to inform family members of steps taken under the power, or of the grantor’s medical status. Healey struck the claim and refused leave to amend.
The Court of Appeal for Ontario agreed “for the reasons given by the motion judge” that no duty of care arose on the pleaded facts. “Because there is no duty of care, there is no reasonable cause of action,” the panel wrote.
The court also rejected McNeill’s argument that the claim should survive because it advanced a novel duty of care. She had not, the panel said, identified any viable theory on which such a duty could be recognized. The panel saw no error in the refusal of leave to amend, finding the claim was founded on a duty that does not exist and could not be cured by redrafting.
Martin Zatovkanuk of Toronto’s ZLegal Litigation Lawyers, counsel for Phillips, says the Substitute Decisions Act left little room for argument.
“There is no ambiguity in the legislation about the fact that the attorney’s obligation is to follow the grantor’s instructions. The result might have been different if there had been some indication that my client acted against the grantor’s instructions – but the claim contained no such allegation.”
Zatovkanuk characterizes the negligence action as, in substance, an attempt at a will challenge, which he says McNeill has filed as a separate proceeding.
A ruling in McNeill’s favour, he adds, would have had broad consequences for substitute decision-making.
“People would not act as attorneys if following the grantor’s instructions exposed them to liability to family members.”
