Family Conflict Is Not Enough: Alberta Court Upholds Agent’s Authority Under a Personal Directive

Leslie Taylor

With an aging population, disputes as to the decisions made on behalf of adults with declining capacity are becoming increasingly common.

In the decision of Durgeon v Mrklas, 2025 ABKB 458, the Court of King’s Bench of Alberta was tasked with determining whether an adult daughter should be removed and replaced as her aging mother’s Agent pursuant to a Personal Directive, or otherwise limited in her authority as Agent, so as not to restrict her adult siblings from visiting their mother.

The Agent had developed and communicated a visitation protocol in respect of her mother, which required seven days’ notice so as to schedule care providers around any proposed visits and that proposed visits be recurring on regular days in keeping with a routine that benefited her aging mother.

The other adult children made no requests to schedule a visit with their aging mother pursuant to the visitation protocol.  Instead, they engaged in threatening and intimidating communication with the Agent sufficient to result in a restraining order being issued, requested wellness checks be conducted by the Calgary Police Services in respect of their mother, filed a complaint with the Office of the Public Guardian and Trustee (which was ultimately dismissed), retained a social worker to provide “mental support” to their mother, engaged in disruptive communications with the mother’s care home to the point of the mother being required to relocate, and then upon relocation making accusations of their mother having been kidnapped.

In bringing their Application for removal or restriction of the Agent, the other adult children alleged five breaches of the Agent’s duties, which had, or were likely to cause serious harm to their mother’s physical or mental health, as follows:

1. failed to continually determine whether their mother had the mental capacity to make decisions,
2. failed to honour their mother’s wish to ensure that her resources were used to allow her to live independently for as long as possible,
3. caused mental and physical harm by moving their mother into “a lockdown dementia ward” before those drastic measures were necessary,
4. caused physical harm by failing to ensure compliance with a physician’s recommendations for diet and exercise, and
5. caused mental harm by restricting their mother from visiting with her children and preventing their mother from being able to leave “the lock down dementia wing” to live her life to the fullest.

In considering the issues of removal or restriction of the Agent, the Court summarized the relevant considerations as follows:

1. Section 27(1)(d.1) of the Personal Directives Act, RSA 2000, c P-6 [PDA] permits a Court to revoke the authority of an Agent, in whole or in part, if the agent is failing to comply with the Personal Directive or the duties of an Agent, and the Court considers the failure is likely to cause serious harm to the physical or mental health of the maker of the Personal Directive.
2. When it comes to assessing an Agent’s decision on behalf of a maker, the onus rests on the Applicants to demonstrate how and why the Court should interfere with the Agent’s decision. While there is no defined legal test that governs the Court’s authority in section 27(1) of the PDA to override an agent’s decision, exercise of the Court’s discretion should be informed by how the PDA directs an agent to exercise their authority in the first instance.
3. The touchstone of substitute decision making under the PDA is a respect for the expressed or known wishes of the person whose life decisions have been placed in the hands of others. In addition, the requirement in the legislation is that an Agent’s decision-making be exercised in service of the best interest of the maker (PDA at section 14).

The Court provided a detailed analysis of each of the alleged breaches by the Agent, and ultimately found that the other adult children had failed to advance evidence capable of discharging their onus to prove any of the allegations they have made against the Agent. Instead the Court found that the evidence unequivocally demonstrated that the Agent was fully and faithfully discharging her responsibilities as Agent in accordance with her statutory duties; the mother’s Personal Directive; the mother’s wishes, beliefs, and values and the mother’s best interest.

The Court found that on the whole of the evidence, it was solely the actions of the other adult children that were the source of discord between the parties that fueled the ongoing disputes. Most, if not all, of these disputes could have been avoided if the other adult children would have prioritized the mother’s best interest and acted in service thereof, rather than continuing a course of conduct (including litigation) that had been a significant source of distress for the aging mother. The application for removal and replacement of the Agent was dismissed.

While the Court accepted in general that the mother enjoyed her visits with the other adult children, the other adult children did not satisfy the Court that the Agent was exercising her discretion around visitation otherwise than in service of the mother’s wishes, values, and best interests. The Agent was prepared and willing to authorize additional visits and other excursions once the appropriate care accommodations had been secured and put in place, and the visit or excursion was something the mother wished to participate in, entirely in keeping with the Agent’s role and duty. The other adult children failed to provide any evidence in support of a compelling reason to revoke or restrict the agent’s authority over visitation in the manner that they seek. This aspect of their application was also dismissed.

If you are acting as Agent or Attorney for an aging person and are being subjected to accusations of others in the execution of your role, or otherwise have concerns as to the decisions of an Agent or Attorney acting on behalf of an aging person in your life, we invite you to contact the estate litigation lawyers at Vogel LLP to guide you through your options and next steps.