DeVenne v. DeVenne (Part I): Capacity and Validity
The Nova Scotia Supreme Court recently dealt with a case involving the use of a power of attorney in DeVenne v. DeVenne, 2026 NSSC 61 (CanLII). The power of attorney was made in New Brunswick and subject to the New Brunswick Enduring Powers of Attorney Act.
The Court considered whether the elderly woman who made the power of attorney had the capacity to make a power of attorney. The Court also considered whether there had been a breach by the attorneys, whether the attorneys should be relieved from any breach, and what remedy should be granted.
Like many power of attorney cases, DeVenne involved an elderly parent and her children.
The late Ms. Matheson was the mother of four children including Suzanne DeVenne and Wesley DeVenne. She had a distant relationship with one of her other children, and no relationship at all with the other. Suzanne and Wesley had been estranged from each other for over 20 years.
Ms. Matheson was living with her partner, Mr. Olive, in Saint John, New Brunswick. As Ms. Matheson declined Mr. Olive asked Wesley for help. Wesley moved his mother into his house in Dartmouth, Nova Scotia, but quickly found that he could not cope. He took her to the Dartmouth General Hospital where she failed a dementia test. It was then determined that she should return to New Brunswick and she was admitted to the Saint John Regional Hospital. Shortly before Ms. Matheson’s health declined and she was admitted to the hospital, she signed a power of attorney and a will.
The power of attorney named both Wesley and his wife Judith as attorneys, along with Suzanne.
It was sometime later that Suzanne found out about the power of attorney. By the time she found out about it, Wesley had deposited $25,000 of his mother’s money into his own account and subsequently withdrew it in two tranches to fund a down payment for a house.
Part One of this three-part series will look at the question of whether the power of attorney was valid.
The law in New Brunswick (and Nova Scotia) presumes that a person has the capacity to make a power of attorney unless it is proven that they do not.
Although Ms. Matheson was in physical and mental decline in the summer of 2021, she went to see a lawyer on August 27, 2021. She had been diagnosed with dementia and generally had good days and bad days. She had declined to a point where her common-law partner could no longer take care of her.
She had never dealt with the lawyer who made her will and power of attorney until she met with him on August 27, 2021. The Court accepted the evidence of the lawyer that Ms. Matheson was mentally sound during that meeting. The Court particularly noted that the file materials showed that Ms. Matheson had difficulty with her vision but did not record any observation of any cognitive difficulties. The Court also found that the lawyer was credible and reliable when he testified that he assessed the mental capacity of anyone before signing the documents.
The Court went on to conclude that Ms. Matheson was mentally sound on August 27, 2021, but quickly declined and became “fully and permanently demented” and incapable of making her own decisions four days later on August 31, 2021. The Court concluded that Wesley and Judith were aware of Ms. Matheson’s “precipitous decline” as of August 31, 2021.
Interestingly, the power of attorney said that the attorneys were joint but defined this to mean that any of the three attorneys – Wesley, Suzanne or Judith – could act alone. This stated meaning is the opposite of the legal meaning of joint in the New Brunswick and Nova Scotia statutes, which would require all jointly appointed attorneys to act together. However, both statutes permit the power of attorney document to provide otherwise than the default presumption of joint action, and the Court found the POA effectively appointed the attorneys to act severally.
What was important for the other issues in the litigation was that the Court found that Wesley knew that he was an equal co-attorney with his sister Suzanne and his wife Judith.
In Part Two, coming soon, we will look at whether any of the attorneys breached their duty. The third and final part will review the Court’s discussion of whether the attorneys should be relieved from any breach, and what remedy should be granted.
This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the author, Tipper McEwan. Tipper is a partner in Stewart McKelvey’s advocacy group who practices in the areas of estate litigation, insurance, and commercial litigation.
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