We’ve seen it too many times in our estate litigation practice. An adult child moves in with an elderly parent and looks after them in the years leading up to the parent’s death. The parent wants to acknowledge the help the child has given and the sacrifice they’ve made so, before they die, they amend their will to include an additional gift or percentage share of their estate to the caregiver child.
When the parent dies, the other children in the family are crushed. They all loved their parents equally and were expecting an equal division of the estate. An estate that’s divided 60-20-20 amongst three siblings hardly seems fair to them.
But what if it is? What if the caregiver child gave up their career early to look after the parent? What if they put their own social life and outside interests on hold to perform the daily tasks that needed to be done? Isn’t that child entitled to some recognition for these sacrifices?
The issue is a simple one: fairness and equality can be two different things. When fairness trumps equality, and requires an unequal division of an estate, that’s when the problems begin, because fairness means different things to different people.
The solution? Talk
Eldercare provided by one of several children is a common situation and, in my experience, family members should discuss estate expectations, and the earlier the better. So much can be gained by talking while the parent is still alive and able to express their thoughts and wishes.
The children too have a chance to express their thoughts. For example, what if one child actually wanted to contribute more to eldercare but didn’t want to usurp the role of the child currently giving care? The only way that will come out is through a family discussion.
Yes, it can be awkward starting a conversation about eldercare and estate issues. No one wants to appear needy or greedy. But the last thing the parent wants after they die is family disharmony and bitter relationships. To avoid that, take the bull by the horn, swallow hard, and start talking. Even if bad feelings emerge, it’s better to air the issues now while there is still time to resolve them.
This recent Globe and Mail article reinforces the need for professional advice in drafting a will, but also has a good discussion on the fairness versus equity issues.
Thanks for reading … Have a wonderful day!
The holidays can be a stressful time. This stress can be amplified when you are caring for another person with disabilities or special needs, such as an elderly parent.
It is important to be aware of your own health, and to recognize possible caregiver burnout or compassion fatigue, and to take steps to remedy it.
- You are furious one minute, and sad and hopeless the next.
- You are susceptible to colds and flu, aches and pains.
- You have developed a short temper.
- You can’t find the time to exercise.
- You can’t find the time for other family or friends.
- You feel that you are alone, and the only one who can provide the care required.
- Put your physical needs first: eat well, get plenty of sleep, have regular medical checkups, exercise.
- Connect with friends. Avoid isolation.
- Ask for help.
- Find out what community resources are available, and use them.
- Take a break. Enlist respite care. Have some fun each day.
- Deal with your feelings. Speak to supportive friends or professionals.
- Find time to relax.
- Get organized. Prioritize responsibilities. Don’t expect to be able to do everything.
- Just say no. Again, you can’t do everything.
- Stay positive. Address conflicts through a family meeting or an elder care mediator. Focus on the rewards of helping a loved one.
A free app is available from the Alzheimer’s Association to help manage care and reduce stress. The app helps caregivers coordinate care on a shared calendar, helps manage health information and track medications. The app also has links to Alzheimer’s Association resources.
Have a happy and safe holiday.
As a part two of blog from Monday, November 27, 2017, Justice Mew was also asked to consider the question of whether the owner of the retirement home was vicariously liable for the actions of Ms. Gibson-Heath. To recap, Hoyle (Estate) v. Gibson-Heath, 2017 ONSC 4481, is about a personal support worker who was criminally convicted of stealing $229,000.00 from Clifford Hoyle, an elderly resident of a retirement home. Ms. Gibson-Heath was an employee of the retirement home when she stole from Mr. Hoyle.
Justice Mew was asked to determine this issue in the context of a motion for summary judgment. The motion record contained affidavits from Robert Regular, the sole director, officer, and shareholder of the retirement home, and Margaret Hoyle, one of Mr. Hoyle’s daughters. Ms. Hoyle’s affidavit spoke to how her father was placed in the retirement home on a permanent basis after breaking his hip and his dementia had worsened. Ms. Hoyle also spoke to how she had no input with respect to the personnel who will be taking care of her father while he is a resident of the retirement home. On the other hand, the affidavit from Mr. Regular spoke to how he was not involved with selecting Ms. Gibson-Heath as Mr. Hoyle’s person service worker. Mr. Regular also spoke to how the retirement home does not purport to offer or provide assistance with the management of a resident’s property or assets.
Justice Mew considered the leading case on vicarious liability for intentional torts, Bazley v. Curry, 1999 CanLII 692 (SCC),  2 SCR 534, which was a case that dealt with the liability of a non-profit organization in the context of the sexual abuse that one of its employees had perpetrated against a resident of one of its facilities. The Supreme Court of Canada test was restated in paragraph 41 of Justice Mew’s reasons and in applying this test, he commented as follows,
“an important consideration when determining whether [the retirement home] should be vicariously liable for Ms. Gibson-Heath’s actions will be whether the additional care services she provided to Mr. Hoyle were an extension of, or associated with, her employment by [the owner of the retirement home] or whether what she was providing was, to use the language of the rental agreement, “extra nursing care” which would have been the responsibility of Mr. Hoyle or his family to obtain, organise and pay for. Such evidence would assist the court in determining the extent to which the employer created or enhanced the risk of the wrong complained of and, hence, the application of the subsidiary factors described by McLachlin J. in Bazley v. Curry.“
Ultimately, Justice Mew could not determine this question summarily based on the record before him and a case conference was ordered to discuss the appropriate next steps regarding the issues against the retirement home. Costs of the motion, as it relates to the summary judgment motion against the retirement home, were reserved to the trial judge after considering the Parties’ costs submissions.
Thanks for reading this week!
In a recent decision of the Superior Court, Justice Mew found that,
“In appropriate circumstances, I conclude that the relationship between an elderly resident of a retirement home and a personal support worker can also be a fiduciary one”.
Hoyle (Estate) v. Gibson-Heath, 2017 ONSC 4481, is a civil proceeding that was commenced after Ms. Gibson-Heath, a personal support worker, was criminally convicted of stealing $229,000.00 from Clifford Hoyle, an elderly resident of the retirement home where Ms. Gibson-Heath worked. Ms. Gibson-Heath was sentenced to 18 months of imprisonment and a restitution order was made for her to pay the shortfall between the full amount stolen and any amounts recovered by the Crown.
At the time of the proceeding before Justice Mew, Ms. Gibson-Heath was a discharged bankrupt and the Estate Trustees of the Estate of Clifford Hoyle were seeking an order that the restitution order survives Ms. Gibson-Heath’s bankruptcy and a civil judgment in the amount of the shortfall amongst other relief. Justice Mew determined that the restitution order survives Ms. Gibson-Heath’s bankruptcy pursuant to section 178(1)(a) of the Bankruptcy and Insolvency Act but he also went further to consider whether section 178(1)(d) would also apply as it relates to “any debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity or, in the Province of Quebec, as a trustee or administrator of the property of others”.
Justice Mew’s analysis can be found at paragraphs 16 to 19 of his reasons. Of note, his Honour commented as follows,
“Ms. Gibson-Heath’s role was to look after Mr. Hoyle. To act in his best interests. As an elderly gentleman, who was already in the early stages of dementia when he started to reside at Fairfield Manor East at the end of 2006, Mr. Hoyle was undoubtedly vulnerable to any abuse of the trust that he placed in those who cared for him.”
Ms. Gibson-Heath did not respond to this proceeding and Justice Mew also found that this was an appropriate case for substantial indemnity costs due to Ms. Gibson-Heath’s fraudulent conduct (click here for the costs decision).
Thanks for reading!