PAUL LEGER, Applicant, – v. –, 2023 NBKB 44

Paul Leger v. Stacey Denton and Jason Denton , 2023 NBKB 044 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON MM-172-2022 BETWEEN: PAUL LEGER, Applicant, – and – STACEY LYNN DENTON and JASON JAMES DENTON , Respondents, DECISION (ORAL) BEFORE: Justice Jean-Paul Ouellette AT: Moncton, New Brunswick DATE OF HEARING: January 24, 2023 DATE OF DECISION: January 24, 2023 APPEARANCES: Michael Heikkinen , for the Applicant; Stacey Lynn Denton and Jason James Denton , per se, Respondents Ouellette, J. [ 1 ] On December 9, 2021, Paul Leger executed before his lawyer a power of attorney rectifying a prior power of attorney dated September 13, 2018.

[ 2 ] The only issue to be decided is whether this power of attorney, dated December 9, 2021, is valid and, consequently, did it revoke the prior power of attorney dated September 13, 2018? [ 3 ] Paul Leger is 64 years old and resides in Moncton, New Brunswick. He is a member of the Canadian Armed forces who retired after a deployment to Bosnia-Herzegovina from October 1994 to May 1995. [ 4 ] He married Carmelita some 32 years ago who had two children from a previous relationship, Stacey and Bobby, who were eventually adopted by Mr. Leger.

While his relationship with Bobby is nonexistent, he had a good relationship with Stacey Lynn Denton. [ 5 ] In 2018, on July 24 th , his wife passed. She had provided him support and managed Mr. Leger’s affairs as he suffered from PTSD resulting from his service in the army. [ 6 ] On September 13, 2018, he executed a power of attorney appointing his daughter, Stacey Lynn Denton, as his attorney to assist him in managing his finances and to take care of his personal matters.

Jason Denton, her husband, was the alternate attorney in the event that Stacey would be unwilling or unable to act. [ 7 ] The relationship between Mr. Leger and Mrs. Denton deteriorated to the point that Mr. Leger consulted with a lawyer to have a new power of attorney prepared and executed which appointed his brother, Michel Leger, as his attorney. This power of attorney was executed on December 9, 2021. [ 8 ] Subsequently, only the nursing home, Briarlea, acknowledged the validity of this newly executed power of attorney. [ 9 ] Veteran Affairs, from where Mr.

Leger gets his revenue, CIBC, his banking institution, and his nurse practitioner did not acknowledge its validity. [ 10 ] While Mrs. Denton continued to act as his attorney on some issues, Michel Leger was the one taking care of Paul’s affairs at the nursing home. [ 11 ] Paul Leger filed this application to have his power of attorney, executed on December 9, 2021, validated and to have Michel Leger set as his attorney. Other issues raised in his application deal with his finances and are to be dealt with in a subsequent hearing. [ 12 ] Mr.

Leger relies primarily on the provisions of the Enduring Powers of Attorney Act , SNB 2019, c 30 , which states at section 3(1) : Enduring powers of attorney 3(1) An enduring power of attorney is a power of attorney in which a grantor does one or both of the following: (

a) appoints an attorney for property to act on behalf of the grantor in relation to the property and financial affairs of the grantor and specifies that (

i) the attorney may act when the grantor lacks capacity, or (ii) the attorney may act regardless of whether the grantor lacks capacity; and (

b) appoints an attorney for personal care to act on behalf of the grantor in relation to the personal care of the grantor when the grantor lacks capacity. [ 13 ] The requirements pertaining to the validity of an enduring power of attorney are set out in section 4(1) of the Act as follows: Validity 4(1) An enduring power of attorney is valid if (

a) the grantor had the capacity to make it, (

b) it is in writing and is signed and dated by the grantor or, in the circumstances described in subsection (2), by another person, (

c) in the case of an enduring power of attorney in which an attorney for property is appointed or an attorney for property and an attorney for personal care are appointed, (

i) it is signed and dated in the presence of a lawyer, and (ii) it includes or is accompanied by a written statement by the lawyer declaring that the lawyer (

A) is a practising member of the Law Society of New Brunswick, (

B) reviewed the provisions of the enduring power of attorney with the grantor, (

C) was present when the enduring power of attorney was signed by the grantor or, in the circumstances described in subsection (2), by another person, and

(

D) is of the opinion that the grantor had the capacity to make the enduring power of attorney, and (

d) in the case of an enduring power of attorney in which only an attorney for personal care is appointed, it meets the requirements ofparagraph (

c) or it is signed and dated in the presence of two witnesses, both of whom are adults and neither of whom is the attorney orthe spouse, common-law partner or child of the attorney, and it is signed by the two witnesses. [14] Capacity is defined in

section 2 of the Act as follows: Capacity 2(1) A person has capacity with respect to a matter or

an act if the person is able to (

a) understand the information that is relevant to decisions with respect to the matter or act, and (

b) appreciate the reasonably foreseeable consequences of decisions with respect to the matter or act. 2(2) A person is presumed to have capacity unless it is determined otherwise. [15] In Marquis v. Weston (1993), (NB CA), 134 N.B.R. (2d) 17 (N.B.

C.A.), in the context of a challenge ofa testator’s capacity at the time of the execution of a will, which is similar to the capacity required of a person executing a power ofattorney, the New Brunswick Court of Appeal held that the emphasis in determining capacity should be on the evidence of those whowitnessed the testator at the time the will was made rather than the evidence of medical specialists who are not present at the time of thesignature. [16] In Laszlo v.

Lawton, 2013 BCSC 305 , at para. 197, Balance J. stated that the issue of whether a testator had therequisite capacity to make a will is a question of fact determined on all the circumstances and the assessment of a highly individualizedand fact-specific inquiry. [17] The Court, in Lazlo, stated the following at paragraph 198: [198] Testamentary capacity is not a medical concept or diagnosis; it is a legal construct. Accordingly, scientific or medical evidence– while important and relevant – is neither essential nor conclusive in determining its presence or absence.

Indeed, the evidence of laywitnesses often figures prominently in the analysis. Where both categories of evidence are adduced, it is open to the court to accordgreater weight to the lay evidence than to the medical evidence, or reject the medical evidence altogether: Baker Estate v. Myhre (1995), (AB KB), 28 Alta. L.R. (3d) 428 at para. 39 (Q.B.); O’Neil v. Brown Estate, (SCC), [1946] S.C.R.622 [O’Neil]; Spence v. Price (1945), (ON CA), [1946] 2 D.L.R. 592 at 595-96 (Ont. C.A.); James at para. 77; Miliwatv.

Gagné, 2009 BCSC 1447, aff’d 2010 BCCA 323 [Miliwat]. [18] In compliance with the Act, there is a presumption that the applicant had the capacity to enter into a new power of attorney. Iwill review the evidence to support that assertion later. [19] The burden of proof is on the Respondents, Mr. and Mrs. Denton, to rebut the validity of a power of attorney. [20] Mr. and Mrs. Denton relied on a letter from February 2021 by Melissa Daigle Richard, a nurse practitioner, who stated thatMr. Leger’s new power of attorney should not be enacted given his incapacity.

They also mentioned some discrepancies in what hereported to solicitor Barley, who drafted and had Mr. Leger execute the power of attorney. Those discrepancies are about his years ofmarriage to his wife, the age of his granddaughters, and the years since the death of his brother. They also mentioned the notes andemails from a psychologist, Michelle Manuel. No affidavit was submitted by either the nurse practitioner, Mrs. Daigle Richard, or thepsychologist, Michelle Manuel, and little weight, if any, can be given to their evidence. [21] On October 20, 2021, Mr. Leger met with a psychiatrist, Dr.

Minal Mistry, for a consultation and who’s report was filed withthis Court. [22] Dr. Mistry noted that Mr. Leger was cognitively oriented as to time and place, capable of engaging in a natural and intelligentconversation, and that he was not happy with the present situation of having Mrs. Denton as his attorney as he believed she held a grudgeagainst him. Dr. Mistry makes no mention of a dementia diagnosis. [23] While Dr.

Mistry did not file a sworn affidavit as to the contents of his report, it is a report that is produced by a qualifieddoctor and prepared during the same period that the new power of attorney was being considered. [24] Solicitor Monica Barley’s affidavit included some of the notes she took during the two meetings that were held before she hadMr. Leger execute his power of attorney. [25] In her notes, solicitor Barley reproduced Mr. Leger’s intent of appointing his brother, one brother in particular over the otherfor reasons that are more than farfetched. He explained that Mrs.

Denton had taken his money and he could not access any informationon his financial affairs. [26] Upon having asked precise questions and getting precise answers from Mr. Leger, solicitor Barley had him execute his powerof attorney based on his instructions that could not have come from a person without a full mind or capacity. [27] There is no doubt that Mr.

Leger understood the information that was relevant to his decision to have a new power of attorneyexecuted and he could appreciate the reasonably foreseeable consequences of his decision to execute a new power of attorney. [28] The evidence presented and found on record support the conclusion that Mr. Leger had the capacity to execute the power ofattorney when he did.

[ 29 ] The facts clearly demonstrate that Mr. Leger had the requisite capacity to execute a power of attorney. The capacity to execute a power of attorney is not a medical concept or diagnosis, it is a legal contract. While it is relevant and important to consider scientific or medical evidence, it is not essential nor conclusive in determining its presence or absence. [ 30 ] The Court, at bar, weighed the evidence of solicitor Barley and found it credible and reliable, and her notes outweigh any medical evidence presented by Mr. and Mrs.

Denton. [ 31 ] No reliable rebuttal evidence has been submitted to invalidate the power of attorney dated December 9, 2021. [ 32 ] It is therefore the Order of this Court that Mr. Paul Leger’s Power of Attorney executed December 9, 2021, is valid and in full force. Consequently, the Power of Attorney dated September 13, 2018, is revoked as of the date of the execution of this decision rendered this 24 th day of January 2023. DATED at Moncton, New Brunswick this 24 th day of January 2023. ____________________________________ Jean-Paul Ouellette, Justice of the Court of King's Bench of New Brunswick