Keeping a 94-Year-Old Father in His Own Home: How Ken Wise Defeated a Guardianship Application

McNutt v. Draycott, 2014 ONSC 5363 (Ontario Superior Court of Justice)

A Family Divided Over an Elderly Father's Care

Peter Draycott was 94 years old. Despite his age and a diagnosis of dementia, he still lived in his own home with two of his four children, Geoffrey and Yolis, who cared for him daily. He dressed himself every morning in a suit jacket, tie, and dress pants — "in case something comes up," he told his care worker. He climbed the stairs to his bedroom about ten times a day. He had his beloved cats for company. By all accounts, he was content.

But Peter's other two children, Daphne and Anthea, disagreed. They believed their father was being neglected and wanted him placed in a long-term care facility. Daphne brought an application to the Ontario Superior Court of Justice to be appointed guardian of Peter's person and property — a move that would have automatically terminated Peter's own powers of attorney and potentially removed him from the home he had lived in for years.

Ken Wise's Defence: Respecting Peter's Wishes

Ken Wise represented Geoffrey and Yolis, the children who were caring for their father at home. Ken argued that Peter had made his own wishes clear through his powers of attorney — he wanted his children to look after him, not strangers in an institution. The allegations of neglect were denied under oath and had not been tested through cross-examination. When police had attended the home after a complaint, they found the house neat and orderly, ample food in the fridge, and Peter content with no safety concerns.

Ken submitted that a standard of perfection was not required. What mattered was whether Peter was being reasonably cared for — and he was. Peter was happy, he was surrounded by family, and he had his cats. Removing him from that environment would have been a tragedy, not a rescue.

The Court's Decision

Justice Gray dismissed the guardianship application entirely. The court held that Peter's wishes, as expressed through his powers of attorney, should be observed unless it was clear that his interests were being harmed — and that had not been shown. The court noted that there were clear advantages to Peter living in his own home, in comfortable surroundings with his children and his pets, and that the applicant had not established that this arrangement was inadequate.

Why This Case Matters

Family disputes over the care of an elderly parent are among the most emotionally charged legal matters. When one family member seeks to override a parent's expressed wishes through a guardianship application, the consequences are significant — the parent's autonomy, their home, and their daily life are all at stake. This case demonstrates that Ontario courts take the least restrictive approach seriously. A guardianship order is a last resort, not a first option, and the wishes of the incapable person carry real weight.

If you are facing a guardianship dispute, a challenge to a power of attorney, or any disagreement about the care of an elderly family member, contact Ken Wise & Associates. Ken has decades of experience advocating for families in these sensitive matters.

Phone: (416) 924-6231

Email: ken@kenwiseandassociates.ca