Background
Sandra McNeill sued Kenneth Phillips, her mother’s husband and attorney for personal care, following her mother’s illness and death in December 2024. McNeill alleged that Phillips failed to tell her about her mother’s hospitalizations and death, prevented her from visiting after her mother became incapacitated, and refused to reschedule a viewing so that she could attend.
McNeill framed the claim in negligence, alleging that Phillips owed her a duty to provide information about her mother’s illness and death and to accommodate her attendance at the viewing. The Superior Court struck the claim for disclosing no reasonable cause of action, alternatively found it to be an abuse of process, and denied leave to amend.
The Court’s Holding
The Court of Appeal dismissed McNeill’s appeal. It agreed that Phillips owed her no duty of care in the circumstances pleaded. As attorney for personal care, his duty was to McNeill’s mother—the grantor—and required him to follow the power of attorney and the applicable legislation. The law did not require him to inform family members about the grantor’s medical condition or actions taken under the power of attorney.
The court rejected the argument that the claim should survive merely because it proposed a novel duty of care, finding that McNeill had identified no viable basis for recognizing such a duty. It also upheld the refusal to grant leave to amend because the absence of a duty made the claim fundamentally incurable.
The court found no procedural unfairness. A case-management direction had scheduled the motion to strike months earlier, McNeill’s counsel did not seek an adjournment and said he was prepared to respond orally, and evidence and cross-examinations were unavailable on a pleadings motion under rule 21.01(1)(b). The appeal was dismissed with costs of $8,000 to Phillips; the court did not address the alternative abuse-of-process ruling.
Key Takeaways
- An attorney for personal care does not, on the facts pleaded here, owe an adult child a duty to report the grantor’s hospitalization, medical status, or death.
- Calling a proposed duty of care “novel” does not prevent a claim from being struck when no viable theory supports recognizing that duty.
- Leave to amend may be denied where the defect is fundamental and additional pleading cannot create a legally recognized duty of care.
Why It Matters
The decision confirms that obligations arising from a power of attorney for personal care run to the grantor and do not, without a recognized legal basis, create negligence duties to other family members. Distressing family circumstances alone cannot supply the missing duty of care.
The ruling also illustrates the limits of procedural objections on a motion to strike: because evidence is inadmissible under rule 21.01(1)(b), an asserted inability to file evidence or conduct cross-examinations does not establish unfairness.