Capacity, Undue Influence and the Least Restrictive Alternative: Melcher v. Melcher

Introduction

In Melcher v. Melcher, 2026 ONSC 1422 (“Melcher”), the Ontario Superior Court considered the capacity of Patricia Melcher (“Ms. Melcher”), an 82-year-old woman with dementia, and the validity of competing estate and incapacity planning documents executed by her.

In December 2023 and January 2024, Ms. Melcher executed the following documents (collectively, the “Original Documents”):

1. a continuing power of attorney for property dated December 21, 2023 (the “2023 CPOAP”), appointing her three children, Tony Melcher (“Tony”), Kelly Courchesne (“Kelly”) and Natalie Lalonde (“Natalie”), as her attorneys for property;
2. a power of attorney for personal care dated December 21, 2023 (the “2023 POAPC”, and collectively with the 2023 CPOAP, the “2023 POAs”), appointing Kelly as her attorney for personal care, with Tony and Natalie as substitutes; and
3. a Last Will and Testament dated January 2, 2024 (the “January Will”), naming her three children as beneficiaries of her estate (Melcher v Melcher, 2025 ONSC 6567 at para 5).

Several months later, on October 10, 2024, Ms. Melcher executed a new set of documents (collectively, the “October 2024 Documents”):

1. a continuing power of attorney for property (the “2024 CPOAP”) appointing her common-law spouse, Ron Carty (“Mr. Carty”), as her attorney for property;
2. a power of attorney for personal care (the “2024 POAPC”, and collectively with the 2024 CPOAP, the “2024 POAs”), appointing Mr. Carty as her attorney for personal care; and

4. a Last Will and Testament (the “October Will”), appointing Mr. Carty as her estate trustee and dividing her estate equally between Mr. Carty and her three children (Melcher v Melcher, 2025 ONSC 6567 at para 10).

In the 2025 Melcher decision, the Court ordered Ms. Melcher to undergo a capacity assessment pursuant to s. 79 of the Substitute Decisions Act, 1992, SO 1992, c 30 (the “SDA”). Following that assessment, the Court found that Ms. Melcher was incapable of managing her property and personal care, incapable of granting a continuing power of attorney for property, lacked testamentary capacity, and lacked capacity to instruct counsel (Melcher v Melcher, 2026 ONSC 1422 at para 5).Importantly, however, she retained capacity to grant a power of attorney for personal care, although she was found to be highly vulnerable to undue influence (para 48).

In Melcher, the Court ultimately found that the October 2024 Documents were invalid, declared the 2023 POAs valid and in full force and effect, and declared the January Will valid and that it would take effect upon Ms. Melcher’s death (paras 85-95). Curiously, the Court also appointed Ms. Melcher’s children as her guardians of personal care and litigation guardians and made a number of declarations respecting her capacity (paras 85-95). These orders raise several questions about the interaction between capacity, undue influence, the Court’s parens patriae jurisdiction, and the balance between protection and autonomy.

Capacity to Grant a POAPC and Guardianship

The most notable tension in Melcher arises from the Court’s appointment of Ms. Melcher’s children as her guardians for personal care.

The Court’s guardianship appointment is difficult to reconcile with its simultaneous declaration that the 2023 POAPC remained valid and in full force and effect. Section 55(2) of the SDA expressly restricts the appointment of a guardian for personal care where the need for substitute decisions can be met through an alternative approach that is less restrictive to a person’s autonomy. Although the Court relied on Ms. Melcher’s continuing vulnerability to undue influence in making the guardianship order, that vulnerability does not readily explain why the existing 2023 POAPC was insufficient to meet her substitute decision-making needs.

Significantly, the guardianship order appears to give Ms. Melcher’s vulnerability to undue influence disproportionate weight that the SDA does not necessarily contemplate. Although the evidence of Mr. Carty’s undue influence provided a basis to invalidate the 2024 POAPC, the Court nevertheless found that Ms. Melcher continued to retain the capacity to grant a POAPC (paras 46-51, 63-68 & 86). Her vulnerability to future undue influence should not, without more, negate that finding. Capacity and vulnerability to undue influence engage distinct legal inquiries, and treating vulnerability as a basis to displace decision-making capacity risks depriving Ms. Melcher of an ability that the Court expressly found she continued to possess.[1]

The guardianship order also altered the substitute decision-making arrangement that Ms. Melcher had herself chosen. Under the 2023 POAPC, Ms. Melcher appointed Kelly as her attorney for personal care, with Tony and Natalie acting only as substitutes (Melcher v Melcher, 2025 ONSC 6567 at para 5). The guardianship order instead appointed all three children as guardians of personal care (paras 90 & 95). Further, the appointment of a guardian does not simply operate alongside an existing power of attorney. Pursuant to s. 53(1)(b) of the SDA, the appointment of a guardian of the person terminates an existing POAPC. Therefore, the reasons leave unclear which of these competing arrangements the Court intended to govern the management of Ms. Melcher’s care.

Fundamentally, the orders in Melcher are both internally inconsistent and unclear in their practical effect. Greater attention to the statutory consequences of guardianship under the SDA was required, particularly where the orders ultimately displaced the very POAPC that the Court had simultaneously declared valid and in effect. This tension is heightened by the Court’s express finding that Ms. Melcher retained the capacity to grant a POAPC.

Capacity to Instruct Counsel and Litigation Guardianship

The Court’s finding that Ms. Melcher was incapable of instructing counsel, and its resulting appointment of her children as litigation guardians, raises a separate set of concerns.

First, it is unclear what practical purpose was served by legally declaring Ms. Melcher incapable of instructing counsel, particularly where she was already represented by court-appointed counsel pursuant to s. 3 of the SDA. Indeed, s. 3(1)(b) of the SDA expressly provides that a person represented pursuant to that section is deemed to have capacity to retain and instruct counsel.

The Court appears to have viewed Ms. Melcher’s incapacity to instruct counsel as an additional safeguard against the execution of further wills or powers of attorney. However, those concerns were already addressed by the distinct declarations of incapacity applicable to each document. A separate declaration that she lacked capacity to instruct counsel was therefore unnecessary to determine whether she could validly execute any further Wills or powers of attorney. Instead, the declaration imposed an additional restriction on Ms. Melcher’s autonomy without any apparent corresponding practical benefit. In a statutory regime that seeks to balance protection with the preservation of autonomy, such an additional restriction should require a clear and necessary purpose.

Similarly, the reasons do not identify what additional protection required the appointment of a litigation guardian rather than permitting Ms. Melcher to continue to participate through s. 3 counsel.

Even if a litigation guardian was necessary, the appointment of the Applicants is difficult to justify. The Applicants were parties to the very proceeding in which Ms. Melcher was a Respondent and had advanced relief directly affecting her legal rights, autonomy and estate planning (paras 7-8) Their interests were therefore at least potentially adverse to hers. Notably, in its earlier decision, the Court itself recognized the adverse interests of the parties and contemplated that a neutral third party might be required to act as Ms. Melcher’s litigation guardian (Melcher v Melcher, 2025 ONSC 6567, para 75).

The combined effect of these orders was to further restrict Ms. Melcher’s ability to participate independently in litigation concerning her own rights, while placing control of that participation in the hands of the parties seeking relief against her.

Conclusion

Melcher illustrates the difficult balance between protecting a vulnerable person and preserving their dignity and autonomy. The evidence before the Court warranted intervention to address the undue influence exercised over Ms. Melcher and the validity of the October 2024 Documents. However, protection should extend only as far as necessary.

The decision leaves an important question unanswered: how should the Court protect a person who retains capacity to grant a POAPC but is highly vulnerable to undue influence, without allowing that vulnerability to effectively displace their retained capacity?

Ultimately, Melcher demonstrates the risk that a legitimate concern for protection can lead to broader intervention than the statutory findings require. Vulnerability may call for protection, but it should not become a substitute for the distinct capacity inquiries mandated by the SDA, nor a basis for unnecessary restrictions on the rights of the person the legislation is intended to protect.