ONCA: McNeill v. Phillips Duty of Care POA Excludes Grantor's Children

• The Ontario Court of Appeal ruled that an attorney for personal care owes no duty of care to the grantor's adult child.
• The case, `McNeill v. Phillips`, 2026 ONCA 652, involved a daughter's negligence claim against her mother's attorney for personal care.
• The court affirmed that an attorney's sole duty is to the grantor, as stipulated by the `Substitute Decisions Act` and other relevant legislation.
• Allegations included failure to inform the daughter of hospitalizations and death, and preventing hospital visits.
• The ruling emphasizes that attorneys are not legally obligated to communicate with or consider the wishes of third-party family members.

The Ontario Court of Appeal recently clarified the scope of an attorney for personal care's obligations, ruling that such an individual owes no duty of care to the grantor's adult children.

The Ontario Court of Appeal recently clarified the scope of an attorney for personal care's obligations, ruling that such an individual owes no duty of care to the grantor's adult children. This decision stems from the case of `McNeill v. Phillips`, 2026 ONCA 652, released on September 15. The appellant, Sandra McNeill, who was in her late 50s when her mother passed away in December 2024, brought a negligence claim against Kenneth Phillips.

Phillips, her mother's husband and attorney for personal care, was accused of failing to inform McNeill about her mother's hospitalizations and eventual death. McNeill further alleged that Phillips prevented her from visiting her mother in the hospital after her mother became incapacitated and refused to reschedule a viewing to accommodate her availability. McNeill's legal team contended that Phillips had "stonewalled" her attempts to see her mother, despite her having a good relationship with her biological mother. The core of McNeill's claim was that Phillips owed her a duty to keep her informed of her mother's health status and passing.

McNeill's negligence claim was initially brought before the Superior Court, where Justice Susan Healey considered the arguments. McNeill's counsel, Soumya Roop Sanyal of Saachi Law Office PC, argued that a duty of care arose from the `Substitute Decisions Act` (SDA). This legislation mandates that individuals acting for an incapable person must perform their duties diligently, in good faith, and for the benefit of that person, while also fostering contact between the incapable person and supportive family members. Sanyal asserted that Phillips, aware of the strong mother-daughter bond, acted contrary to the mother's wishes and failed to uphold his duty of good faith.

However, Justice Healey rejected this interpretation. She determined that once the power of attorney was activated, Phillips's sole duty as an attorney was owed exclusively to the grantor—his wife. This duty involved adhering to the directives outlined in the power of attorney document and complying with the `Substitute Decisions Act` and the `Health Care Consent Act`. The Superior Court found no legal obligation for an attorney to inform family members about actions taken under the power of attorney or to disclose the grantor's medical condition. Consequently, Justice Healey struck McNeill's claim and denied her request to amend it.

The `Ontario Court of Appeal POA liability` ruling, delivered by a panel comprising Justices Bradley Miller, Gary Trotter, and Jill Copeland, affirmed the Superior Court's decision. The appellate court concurred with Justice Healey's reasoning, concluding that no duty of care existed on the facts pleaded by McNeill. The panel explicitly stated that "Because there is no duty of care, there is no reasonable cause of action," thereby dismissing McNeill's appeal.

The Court of Appeal also rejected McNeill's argument that her claim should proceed on the basis of a novel duty of care. The justices found that McNeill had failed to present any viable legal theory upon which such a duty could be recognized. Furthermore, the appellate panel saw no error in the Superior Court's refusal to grant leave to amend the claim, noting that the action was fundamentally based on a non-existent duty and could not be rectified through redrafting.

Martin Zatovkanuk of ZLegal Litigation Lawyers, who represented Kenneth Phillips, emphasized the clarity of the `Substitute Decisions Act duty of care`. He stated that the legislation leaves no ambiguity regarding an attorney's obligation to follow the grantor's instructions. Zatovkanuk noted that McNeill's claim contained no allegation that Phillips acted against his wife's instructions, which might have altered the outcome. He characterized McNeill's negligence action as, in essence, an attempt to challenge a will, a separate proceeding McNeill had reportedly initiated.

Zatovkanuk further cautioned about the potential ramifications if the court had ruled in McNeill's favor. He suggested that such a decision would have significant negative consequences for substitute decision-making across the province. His concern was that individuals might be deterred from acting as attorneys if adhering to the grantor's instructions exposed them to liability from other family members, thereby undermining the effectiveness of powers of attorney for personal care. This ruling reinforces the principle that the `power of attorney personal care scope` is primarily directed towards the grantor's well-being and wishes.

This ruling clarifies that an attorney for personal care's duty of care is owed solely to the grantor, not to the grantor's adult children or other family members. Lawyers advising clients acting as POAs should inform them that they are not legally obligated to communicate with or consider the wishes of third-party family members, thereby limiting potential liability. Conversely, lawyers advising family members who feel excluded by a POA should understand that a negligence claim based on a duty of care to them is unlikely to succeed in Ontario.

Source: Reporting from legal industry sources