When caregiver of an incapable elderly person goes ‘rogue’

Law360 Canada (September 11, 2025, 10:47 AM EDT) --

Peter Neufeld

Jason Thacker

Lawyers dealing with elder issues face an uncomfortable dynamic when those responsible for seniors take advantage.

While many caregivers act responsibly, problems arise when a “rogue” caregiver abuses their position, exploiting the elder and causing family conflict. This abuse of position can take many forms, but often arises in three situations: (1) Where the rogue is restricting the elder from their supportive family members and friends; (2) Where the rogue is using the elder’s money for their own personal use; and (3) Where the rogue is improperly living in the elder’s home and refuses to vacate.

Lawyers advising concerned family members face a difficult task which requires a thorough understanding of the case law, the Substitute Decisions Act (SDA), the Rules of Civil Procedure and an appreciation of both family dynamics and the politics specific to each family.

Restricting family access

One of the first warning signs of abuse is isolation. Rogue caregivers may block other relatives from visiting or contacting the elder, often under the guise of protecting their health. This can mask neglect, manipulation or financial exploitation. While any person with the requisite capacity can revoke a power of attorney they executed, problems arise when the elder no longer retains capacity to revoke a power of attorney. Lawyers advising the elderly or concerned family members need to consider whether the capacity of the senior involved allows for the execution of a new power of attorney, if the facts of the case warrant seeking an order under the SDA to compel a capacity assessment, or whether there are grounds to seek an order for the attorney’s removal.

Experienced lawyers facing a rogue adult child/caregiver who restricts access to the incapable person recognize this red flag. It often indicates financial abuse and interference with estate planning.

When proceeding to court, counsel would be wise to consider s. 32(1) of the SDA setting out the fiduciary role of a Power Of Attorney for Property and Guardian of Property and s. 66(1) of the SDA, which sets out that Guardians of the Person and Attorneys for Personal care shall be exercised and performed diligently and in good faith. Courts assess such disputes case by case. For instance, in Pettipas v. Pettipas, 2024 ONSC 667, the attorney for personal care restricted her elderly mother’s contact with her sister. In preventing access, she claimed that the restrictions were based upon medical advice and information “gleaned through the media” (Pettipas at para. 35). In this case the attorney was not fostering regular personal contact as required by s. 66 of the SDA. The evidence, including the fact that the attorney’s sister was excluded as a contact for the assisted living home, demonstrated that the attorney was attempting to exclude her sister from having a meaningful role in their mother’s life (Pettipas at para. 77).

Financial abuse

Financial exploitation is a frequent and damaging form of abuse. Attorneys for property may misuse funds, co-mingle accounts, or treat the elder’s assets as their own. While shared expenses can blur boundaries, attorneys must keep clear accounts and use funds solely for the donor’s support.

In Zimmerman v. McMichael Estate, 2010 ONSC 2947, the attorney failed to account for withdrawals and loans to himself, leading to repayment orders (Zimmerman v. McMichael Estate at para. 39). Conversely, in Iannarelli Estate v. Abbruzzese, 2023 ONSC 7262, vague but plausible household expenses such as groceries were accepted (Iannarelli Estate v. Abbruzzese at para. 84).

In cases of misappropriation of assets, these are useful remedial tools for a claimant. The trick is to discern which one is applicable. Will a court grant a tracing order, or declare the existence of a constructive trust? Will the court consider an order for an accounting or a nondissipation of assets? Each case turns on its own facts and requires an in-depth review of the facts and case law to develop a proper litigation strategy.

Refusal to leave the elder’s home

Another recurring conflict arises when a caregiver lives with the elder, often initially to provide support, but later refuses to leave. This creates stress, financial strain and disputes over the property’s use or sale.

If the caregiver is also the attorney, their removal may be necessary before the property can be sold. Even without attorney status, occupants may claim tenant rights, requiring formal eviction. Courts have ordered removal where continued occupation conflicted with the elder’s financial needs, such as in Wadhwani v. Wadhwani, 2018 ONSC 3304, where a daughter was ordered to vacate so the home could be sold to fund her mother’s care (Wadhwani v. Wadhwani at para. 35).

Occupation rent may also be ordered as equitable remedy to compensate the elder for unauthorized use of the property, even when the caregiver is not a defined tenant under the Residential Tenancies Act. Courts have previously applied the test for unjust enrichment when determining whether occupation rent should be ordered (Calmusky Estate v. Calmusky, 2020 ONSC 1506 at para. 73). This test includes the following: (1) enrichment to the caregiver, (2) corresponding deprivation to the elder, and (3) an absence of juristic reason (i.e. legal justification). However, where caregiving provides substantial value, occupation rent may not be awarded, as in the cases of Tarantino v. Galvano, 2019 ONCA 699 at paras. 7-9, and Thompson v. Swietlinski Estate, 2019 ONSC 7310 at para. 169.

Potential dependency claims from the caregiver complicate matters further. Occupants who received shelter or financial support may claim dependent status under s. 58 of the Succession Law Reform Act, entitling them to support after the elder’s death. To avoid this, families should act before death, either by removing occupants or formalizing arrangements through leases.

Conclusion

When developing a litigation strategy to deal with the rogue caregiver the plethora of options can be confusing. Smoke does not always mean there is a fire. A court may order an accounting, but view the other orders sought as premature. A judge may acknowledge the statutory obligation to consult concerned family and friends, but refrain from making the desired order when considering the incapable person’s best interest.

A lunch and learn seminar on the topic of strategies when dealing with rogue caregivers will be hosted by Wagner Sidlofsky LLP on Sept. 16, 2025, starting at 12:00 p.m. These presenters plan to review different types of Power of Attorney abuses and a selection of remedies that can be looked to. Experienced lawyers will review different approaches and strategies and provide their insights on what to consider in different circumstances. It is an opportunity for lawyers to collaborate and canvass different strategies employed when litigating elder law issues. For more information and to register, please access by following this link.

Peter Neufeld is partner at Wagner Sidlofsky LLP, practising in the estate and commercial litigation groups. Jason Thacker is an associate at Wagner Sidlofsky LLP, practising in the estate and commercial litigation groups.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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