This blog post was written by: Holly LeValliant, Estate and Trust Consultant, Scotiatrust Toronto
“A child should not be paid to care for an ailing mother.”[1] The comment captures a persistent expectation that the personal care of a parent is something an adult child, and often a daughter, is simply expected to provide. In estate and incapacity planning, it is remarkably common to see a familiar pattern: a son is named as an Attorney for Property while a daughter is named as an Attorney for Personal Care. The legal framework that governs the two roles treats their compensation very differently.
Where appointments follow this traditional gendered pattern, an Attorney for Property is expressly entitled under the legislation to take compensation. Section 40 of the Substitute Decisions Act, 1992 allows an Attorney for Property to take annual compensation from the incapable person’s property in accordance with the fee scale set out in Ontario Regulation 26/95 which provides that they can take 3% on the capital and income receipts, 3% on capital and income disbursements, and three-fifths of 1% of the annual average value of the assets as a care and management fee. Subject to any prohibition in the Power of Attorney document itself, the Attorney can take the compensation monthly, quarterly or annually. The Attorney for Property is not required to bring an application to the court to be compensated.
No equivalent statutory provision exists for an Attorney for Personal Care. There is no prescribed tariff setting out what the Attorney may take. In the absence of clear authority in the Power of Attorney document, an Attorney seeking compensation may need to apply to the court and provide evidence of the nature and extent of the services, the needs of the incapable person and the value of the services provided. In considering such a claim, the court is guided by the principles of reasonableness and proportionality.
The practical result is that the sibling managing the parent’s investments and real estate has a clear, statutory path to payment, while the sibling making or coordinating decisions about medical treatment, housing, hygiene, clothing and safety, and who may also be providing substantial hands-on care does not. When the role of an Attorney for Personal Care falls, as it often does, to the daughter, the absence of a compensation framework intersects with long-standing social expectations of women’s unpaid labour to the family.
Statistics Canada data show that women are more likely than men to provide unpaid care to adults with long-term conditions or disabilities. Women also spend more time on that care and are more likely to undertake regularly scheduled activities such as personal care and coordinating appointments.[2] The role of an Attorney for Personal Care may be time-intensive, particularly where the Attorney is also coordinating or providing ongoing care. The lack of any statutory right to compensation often falls on the daughter as an Attorney for Personal Care, while the son as the Attorney for Property has access to a prescribed compensation framework, subject to the legislation, the Power of Attorney document and any subsequent review of the accounts.
One option to consider during incapacity planning is to address compensation expressly in both the Continuing Power of Attorney for Property and the Power of Attorney for Personal Care. With legal advice, the documents can establish whether compensation may be paid, the services to which it applies, how it will be calculated, what records must be maintained and which Attorney has authority to make the payment. Addressing these matters in advance can help reduce ambiguity and potential family conflict while recognizing the value of personal care decision-making and support.
Not every Attorney for Personal Care will seek or expect payment. Many family members provide support out of a love and sense of duty or responsibility. However, the difference between the statutory treatment of property management and personal care invites a broader conversation about which forms of family labour are recognized as work. Addressing compensation expressly during incapacity planning can help families acknowledge the value of personal care decision-making, establish clear expectations and reduce the potential for future conflict.
[1] Childs v. Childs, 2015 ONSC 4036
[2] Statistics Canada, Government of Canada, More than half of women in Canada are caregivers, January 5, 2023: https://www.statcan.gc.ca/o1/en/plus/2649-more-half-women-canada-are-caregivers
