Legal Blog

Duties

Lawyers may be liable to disappointed beneficiaries when the lawyers have been dilatory in drafting a will. Do lawyers have a duty of care to an attorney under a power of attorney for property or personal care for drafting the POA improperly? This issue was decided in Barbulov v. Huston 2010 CarswellOnt 3645 (S.C.J.).

Damages

The plaintiff was the attorney under his father’s 1995 POA for personal care. Although the POA gave some discretion to the attorney, it had living will provisions that stipulated that certain life prolonging procedures not be taken under specified circumstances.

The father had a mishap (we are not sure what it was) resulting in major brain damage from lack of oxygen. The neurologists opined that there was no medical cure for the loss of his cognitive abilities. When the hospital asked the attorney about the existence of a POA, the attorney denied its existence. He did so because he felt that, given what it said, the hospital would use it to terminate life support. The attorney also felt that the POA did not correctly express what his father’s wishes actually were.

Since there was no POA to the knowledge of the hospital, it set up a hearing of the Consent and Capacity Board to determine treatment. At the start of the hearing, the attorney belatedly produced the POA. The Board proposed a limited treatment medical plan based on its conclusion, among others, that the POA reflected the father’s wishes.

The attorney appealed that decision. A Superior Court judge held that the Board should not have made its determination as to the POA’s effect because there was no evidence that the POA actually reflected the father’s wishes. The attorney testified at the hearing that his father had not read the POA before signing it. Based on subsequent evidence, this may not have been wholly correct.

Regardless, the judge did not set aside the Board’s order. Because there was no effective POA giving the attorney full discretion over treatment and because of the negative neurological prognoses, the judge felt that the order was reasonable.

As it happened, the father died about 9 months after his mishap.

The attorney sued the lawyer who drafted the POA claiming the $30,000 in costs that the attorney incurred in prosecuting the appeal.

Duty of Care

This category of claim is not a recognised category for a negligence action claiming compensation for pure economic loss. Accordingly, the attorney had to prove that his relationship with the lawyer was sufficiently close that the lawyer ought to have reasonably realised that carelessness on his part might cause damage to the attorney and that the damages were foreseeable.

The judge recognised various duties of care that lawyers owed to persons who were not their direct clients. For example:

a)   A real estate lawyer could be liable to another party in the transaction, usually if the lawyer undertook to do something in the interests of the other party.

b)   A lawyer drafting a will could be liable to a disappointed beneficiary if the will were not drafted properly or not drafted on a timely basis before the testator’s death.

The judge noted, however, that the lawyer who drafted the POA did not undertake to do anything to advance the interests of the attorney. Further, a designated beneficiary in a will has an independent interest in the will that can reasonably be seen to be damaged if the will drafter is negligent; the attorney had no such independent benefit or interest.

The judge declined to extend the duty of care further for the following reasons:

1.   The lawyer was concerned only with the father’s interests, not those of the attorney. The attorney acted in the meetings between the father and the lawyer as an interpreter only. The attorney had no separate interests that needed protection.

2.   The wishes of a grantor of a POA and the attorney could conflict. If a lawyer drafting a POA had to give heed to an attorney’s interests, the lawyer would then be in a conflict of interest.

3.   If a lawyer is negligent in drafting a will or POA, then the lawyer might be liable to the estate or the POA grantor. However, there is no reason for the lawyer to be liable to the executor or attorney to protect them against expenses they might incur.

4.   The causal connection between the damages and the alleged negligence was remote. In this case, there was no real reason for the appeal of the Board’s decision. Either the attorney could rely on the POA to give the instructions he wanted to give or he could not. As soon as he could not rely on the POA – because it was contrary to what he wanted it to say – then he was subject to the Board’s discretion.

Negligence

In case he was wrong in his determination that the lawyer had no duty of care to the attorney, the judge also went on to decide whether the lawyer was negligent.

The judge was not thrilled with the evidence of either the attorney or the lawyer. The attorney had already testified in the consent hearing and some of his evidence at the summary judgment motion was inconsistent with the evidence given there. Further, aspects of his evidence in his affidavit were inconsistent with his evidence on his cross-examination.

As to the lawyer, since there was no indication of notes or contemporaneous writings, the judge stated, “It is apparent from the transcript of his discovery, and even from his subsequent affidavit, that he has little memory of what took place regarding the discussions that he had with the plaintiff and his father regarding the power of attorney. I do not think he had the extent of recall he claimed to have had.” To top it off, the judge also stated, “The (attorney) asserts that (the lawyer) cannot possibly have a clear recollection of a five minute discussion fifteen years earlier without any notes available as to what was discussed. I think that is a fair criticism. I believe that (the lawyer’s) evidence, as with the evidence of the (attorney), is far more reconstruction than recollection and I put little weight on what (the lawyer) said he could recall being discussed.”  

Although the judge did not much like the evidence of either party, the judge still had to make a decision. The attorney admitted that, from the start, he knew that the lawyer had inserted living will conditions in the POA and he knew that he did not like them. He initially told the lawyer that he felt that they were an incentive for euthanasia.

The attorney alleged that the lawyer told him he could ignore the printed words of the POA and assume that, as attorney, he had a discretion that those words denied him. The judge simply found that evidence to be implausible and decided that the lawyer inserted the living will conditions because the father had requested him to do so; accordingly, the lawyer was not negligent.

Moral

Again, we harp, lawyers, please take notes when you deal with clients. Without notes, if the clients have a plausible explanation of what occurred, they will likely be believed and your evidence will be discounted.