The job of being an attorney for personal care for an incapable person is not an easy one. The attorney often has to make difficult decisions regarding an incapable person’s medical care and treatment, personal care, food, clothing, and shelter. A particularly difficult decision that can arise in the case of older adults is the decision of whether an older incapable person should be placed in a retirement or long-term care home.
I recently came across a decision that considered a personal care attorney’s decision to move his mother, Ann, into a long-term care facility. As set out in Corbet v Corbet, 2020 ONSC 4157, prior to the move, Ann had been living with her personal care attorney’s son (Ann’s grandson), and his spouse. The personal care attorney lived in the USA. The grandson and spouse were the defendants to an action brought by the personal care attorney, and the defendants had brought the motion that was dealt with in the decision. The motion sought an order that Ann return to live with the defendants.
The Corbet decision discussed the powers and duties of an attorney for property, as governed by the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Section 66 of the SDA provides that a personal care attorney must exercise his or her powers and duties diligently and in good faith. If the attorney knows of prior wishes or instructions of an incapable person, they shall make their decision in accordance with those prior wishes or instructions. If the attorney does not know of a prior wish or instruction, or if it is impossible to make the decision in accordance with the wish or instruction, the attorney shall make the decision in the incapable person’s best interests. Although making a determination of what is in the incapable person’s best interests can be difficult, the SDA does set out the factors that the attorney must consider, as follows:
- the values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;
- the person’s current wishes, if they can be ascertained; and
- the following factors:
- (i) Whether the guardian’s decision is likely to,
- improve the quality of the person’s life,
- prevent the quality of the person’s life from deteriorating, or
- reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.
- (ii) Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.
- (i) Whether the guardian’s decision is likely to,
Ultimately, the court determined that it was not prepared to grant the order sought by the defendants. Some of the factors that were determinative included the following:
- Ann had entrusted her only son as her attorney for personal care.
- The court should not attempt to micromanage an attorney’s day-to-day handling of an incapable person’s affairs unless there is clear evidence the attorney is not acting in good faith.
- Before making the decision to move Ann to the long-term care facility, the attorney consulted with Ann’s family doctor, and had a comprehensive assessment of the defendants’ home done by the LHIN case manager.
- Although Ann had expressed that she wanted to “go home”, the court found that Ann perceived her home as the home she had shared with her late husband, and not the defendants’ home.
- There was no evidence that the personal care attorney failed to consider the best interests criteria as set out above.
- There were allegations that the defendants had mistreated or neglected Ann, and that they had misused or misappropriated her money. As a result, it remained to be determined whether they were “supportive family members” with whom the attorney has a duty to consult under the SDA.
Attorneys for personal care would be well-advised to carefully consider their decisions, in light of the guidelines set out in the SDA, and to document their considerations in making decisions on behalf of an incapable person.
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Earlier this week, Ian Hull and I spoke at Osgoode Professional Development’s program on Powers of Attorney and Guardianship: Non-Contentious and Contentious Matters.
During the program, in addition to discussing new execution options for wills and powers of attorney, the panel shared its thoughts on a number of considerations relevant to the preparation of powers of attorney during the pandemic, including some of the following:
- It may now be impractical to permit for decisions regarding personal care or property to be made only jointly by two or more attorneys acting together where the attorneys selected are not members of the same household.
- In light of ongoing travel restrictions, it may be increasingly important that the selected attorney(s) for property and/or personal care are local.
- It may be more difficult to access multiple medical professionals (or a specified medical professional) to confirm incapacity during a healthcare crisis. The provision regarding the circumstances in which a power of attorney is to become effective should accommodate potentially limited access to a specified physician or more medical professionals than necessary.
- It may be more important than ever to ensure that the original power of attorney documents (and/or copies) are physically accessible to the named attorney(s).
- The current circumstances present a unique opportunity to assist clients in updating outdated plans and ensuring that powers of attorney are put into place for those who do not have them already.
Even outside of the context of a pandemic, considering practical issues like those set out above when creating or updating an incapacity plan is a worthwhile exercise and may expose potential problems with the plan before it is finalized.
Thank you for reading.
Other blog entries that may be of interest:
We often encounter situations where the administration of an estate is complicated by the fact that the deceased was married multiple times, and there is a clash between children from a prior relationship and a subsequent spouse (and/or his or her children). Sometimes, a couple will be closer with one set of children, which may lead to disputes following both of their deaths. Estate of Ronald Alfred Craymer v Hayward et al, 2019 ONSC 4600, was one such case, in which Joan and Ronald had been closer for much of their 32-year marriage with Joan’s children from a prior marriage. After Joan and Ronald died in 2016 and 2017, respectively, a dispute arose between their adult children.
While Ronald’s will named his own children as beneficiaries of his estate, his Continuing Power of Attorney or Property (like Joan’s), named Joan’s daughter as alternate attorney for property, should his spouse be unable to act. Joan had acted as Ronald’s attorney for property from 2006, during which he had suffered a stroke, until her death. In 2011, Joan had transferred the couple’s matrimonial home, previously held jointly, to herself alone. During this period, however, there had been no request by Ronald’s children for an accounting. Joan’s daughter had subsequently acted as Ronald’s attorney for property and as estate trustee for Joan’s estate over the period of approximately eight months between the deaths of Joan and Ronald.
Ronald’s children sought a passing of accounts with respect to the management of their father’s property by Jane and her daughter and, specifically, challenged the change in title to the matrimonial home. The Court referred to Wall v Shaw, 2018 ONCA 929, in stating that there is no limitation period to compel an accounting. Accordingly, it considered the only bar to this relief to be laches and acquiescence. Justice C.F. de Sa commented that the there was nothing improper in the manner in which the plaintiff had sought the accounting and, furthermore, that the delay was not unreasonable in the circumstances. The Court permitted the claim regarding the matrimonial home to continue, but nevertheless declined to order a passing of accounts:
…[O]rdering the passing of accounts is discretionary. And in my view, to require an accounting at this point would result in a clear injustice as between the parties.
[Joan’s daughter,] Linda, as Estate Trustee, is hardly in a position to account for Joan’s spending while she was alive. Yet, to require a passing of accounts at this point would subject every line of Joan’s spending (as Attorney for Property) to the court’s scrutiny. Moreover, as the Estate Trustee, the Defendant would be liable to account for any unexplained expenditures.
Indeed, it is unclear that the spending was spurious given the nature of the relationship between Joan and Ronald. Joan would have been spending the money as his wife as much as his Attorney for Property. The failure to keep detailed accounts is hardly suspicious given the circumstances here.
…In the circumstances, I will not order a passing of accounts.
This decision is interesting in that it clearly considers the practicality of a passing of accounts and the inability of the deceased attorney’s estate trustee to properly account in the absence of relevant records in determining that it would be unjust to order a passing of accounts, despite there being no other apparent legal reason not to do so.
Thank you for reading.
Other blog entries that may be of interest:
The Court of Appeal of British Columbia (the “BCCA”) recently dealt with an appeal from an Order of the British Columbia Supreme Court which declined to exercise jurisdiction by staying a petition for guardianship of an incapable person. This Order also included various terms relating to the person’s care and property.
This appeal dealt with the guardianship of Ms. Dingwall, the mother of both the Appellant and the Respondent.
At all material times, Ms. Dingwall and the Appellant lived in Alberta and the Respondent resided in British Columbia. Between 2010 and 2014, Ms. Dingwall resided for various periods in both Alberta and British Columbia. At the time of this appeal, Ms. Dingwall lived in a care home in British Columbia. She suffered from advanced dementia.
The Alberta Proceedings
On February 5, 2015, the Appellant sought an Order from the Alberta Court of Queen’s Bench appointing him as Ms. Dingwall’s guardian and trustee. The Respondent opposed this Order and in September, 2015 filed an Application to move the proceedings to British Columbia. This Application was never heard and the matter continued to be heard in Alberta.
On July 7, 2016, the Court granted the Order sought by the Appellant which appointed him as Ms. Dingwall’s guardian and provided him with the authority to make decisions with respect to Ms. Dingwall’s health care, the carrying on of any legal proceeding not related primarily to Ms. Dingwall’s financial matters and Ms. Dingwall’s personal and real property in Alberta.
The British Columbia Proceedings
A few weeks prior to the Alberta hearing, the Respondent filed a petition with the Supreme Court of British Columbia seeking a declaration that Ms. Dingwall was incapable of managing herself or her affairs due to mental infirmity and an Order appointing her as committee of Ms. Dingwall’s person and Estate. The Appellant opposed the Respondent’s petition by arguing that the Supreme Court of British Columbia lacked jurisdiction.
The Supreme Court of British Columbia asserted jurisdiction because Ms. Dingwall was at the time of the decision, ordinarily resident in British Columbia and because there was a “real and substantial” connection to British Columbia. The Court found that, in this case, both Alberta and British Columbia had jurisdiction.
Despite British Columbia having jurisdiction in this case, the Court found that the Alberta forum was nonetheless more appropriate and cited the following factors in favour of its decision:
- The similarity of the proceedings;
- Alberta having issued a final order; and
- The Respondent having attorned to Alberta’s jurisdiction by opposing the Appellant’s petition.
As a result, the Court stayed the Respondent’s petition but also made several Orders respecting Ms. Dingwall’s care and property. The parties’ costs on a “solicitor client basis” were to be payable by Ms. Dingwall’s Estate.
The Appellant appealed the following Orders made by the Court, other than the stay of the Respondent’s proceedings:
- issuing an Order on the matter after declining to exercise jurisdiction respecting it;
- finding the Court had territorial competence over the matter; and
- awarding solicitor-client costs payable from Ms. Dingwall’s Estate.
The BCCA Decision
The BCCA allowed the appeal and found that the lower Court erred in making Orders concerning the very matter over which it had declined to exercise jurisdiction. The Court noted that a decision to decline jurisdiction over a particular matter renders a judge incapable of deciding issues or making orders as to the substance of that matter.
As a result, the Court set aside the Orders respecting Ms. Dingwall’s care and property. In light of that finding, the Court of Appeal found it unnecessary to deal with the issue of whether British Columbia had territorial competence over this matter, given that the lower Court declined to exercise jurisdiction, in any event.
The Court of Appeal found that the Appellant was entitled to special costs payable by Ms. Dingwall’s Estate and that the Respondent was not entitled to costs.
The full decision can be found here: Pellerin v. Dingwall, 2018 BCCA 110
Thanks for reading.
The applicability of limitation periods to estates, trusts, and capacity matters is crucial for litigators to consider. In a recent decision of the Superior Court of Justice, the Court was asked to consider the application of the limitation period in Part V of the Succession Law Reform Act (“SLRA”) to a claim that was advanced by the Public Guardian and Trustee (the “PGT”) as the litigation guardian of an incapable support claimant.
Shaw v. Barber, 2017 ONSC 2155, is an important precedent for the proposition that limitation periods do not run against the incapable person from the day that the PGT becomes his/her statutory guardian of property. By operation of section 16(5) of the Substitute Decisions Act, 1992, the PGT automatically becomes an incapable person’s statutory guardian of property the moment they receive a certificate of incapacity from the assessor. In Shaw v. Barber, the dependant support claimant, Lois Shaw, was assessed and found to be incapable of managing property on February 16, 2015 and a copy of the certificate was sent to the PGT on or about February 25, 2015.
Prior to the assessment, Ms. Shaw lived with Frank Cyril Barber on the date of his death, although they were not married. Mr. Barber died in August, 2014, leaving a Will which named his son as the sole Estate Trustee and beneficiary of his Estate. A Certificate of Appointment of Estate Trustee with a Will was issued to Mr. Barber’s son on February 5, 2015. Pursuant to section 61(1) of the SLRA, an application for dependant support may not be made six months after the grant of probate, subject to the Court’s discretion in section 61(2) to allow claims against the undistributed portion of an estate. Without considering the Court’s discretion in section 61(2) of the Act, Justice McNamara found that Ms. Shaw’s claim for dependant support was not statute barred despite the fact that it was issued, one year after six months from probate, on August 5, 2016.
In his reasoning, Justice McNamara considered the tolling provision applicable to incapable persons while he/she is not represented by a litigation guardian in section 7 of the Limitations Act, 2002 (which applies to the section 61 of the SLRA). The turning point then becomes whether a guardian of property is automatically a litigation guardian in relation to the claim at issue since a guardian has the power to do anything the incapable person may do except make a will. In this case, there was an affidavit from PGT counsel which explained the time consuming investigations involved when the PGT becomes a statutory guardian of property because of the lack of first-hand information from the incapable individual. Justice McNamara determined that a guardian of property shall act as litigation guardian when he/she has determined that there is a basis for exercising their authority in that role, and that imposing a limitation period from the date in which the PGT becomes statutory guardian is contrary to the Limitations Act and it would create impossible timelines and potential injustice for this vulnerable group. Furthermore, Justice McNamara was also persuaded by the fact that the Estate Trustee in this case will not be prejudiced by the delay, given that he is also the sole beneficiary, and that he was aware all along that the PGT was considering a claim against the Estate.
This case is also an example of the latitude that Courts may accord to large-scale claimants as seen in 407 ETR Concession Company Limited v. Day, 2016 ONCA 709.
Please do not hesitate to contact our firm for a copy of Justice McNamara’s reasons in Shaw v. Barber and click here for comments from Russel Molot, counsel for the PGT in this matter, as reported in the Law Times.
“Disability” is defined in Rule 1.03(1) to mean a person who is (a) a minor, (b) mentally incapable within the meaning of section 6 or section 45 of the Substitute Decisions Act, 1992, whether that person has a guardian or not, or (c) an Absentee within the meaning of the Absentee Act.
The procedure and requirements for the appointment of a Litigation Guardian are different for plaintiffs/applicants and defendants/respondents.
The initial appointment of a Litigation Guardian for a plaintiff or applicant occurs without a court order upon the filing of an affidavit with the court setting out the information outlined in Rule 7.02(2).
Where the party under a disability is a defendant or respondent to a proceeding, Rule 7.03(1) states that a Litigation Guardian must be appointed by motion to the court unless the exceptions set out in Rule 7.03 (2), (2.1) or (3) apply. These exceptions include the prior appointment of a Guardian or a valid Attorney for Property with express powers to act as Litigation Guardian, or where the Office of the Children’s Lawyer is representing a minor’s interest in an estate or trust. Where there is no appointed guardian or attorney under a power of attorney, any person not under a disability may act as a Litigation Guardian. Where there is no person willing to act as Litigation Guardian, the Public Guardian and Trustee may be appointed.
Litigation Guardians are necessary to protect parties under disability, but also to protect opposing parties and court procedures.
A recent decision of the Ontario Superior Court of Justice, Huang v. Braga, 2016 ONSC 6306, considers the appointment of a litigation guardian for a defendant or respondent in circumstances of mental incapacity.
In that case, the defendant had retained five different counsel over 13 years. She had fired her counsel, rejected a large settlement and insisted on proceeding to trial. A capacity assessment was ordered and she was found to be incapable of acting for herself in the action, but capable of managing her property. On review of the totality of the circumstances, Archibald J. found the defendant to be a party under a disability and issued Judgment appointing the Public Guardian and Trustee to act as litigation guardian.
Archibald J. refers to the decision in C.C. v. Children’s Aids Society of Toronto,  OJ No. 5613, which establishes the following test for whether a Litigation Guardian is required:
- The person must appear to be mentally incapable with respect to an issue in the case; and
- As a result of being mentally incapable, the person requires legal representation to be appointed by the Court.
In addition, Archibald J. states that the cause of incapacity must stem from a source of mental incapacity such as mental illness, dementia, developmental delay or physical injury and not from some other reason such as lack of sophistication, education or cultural differences.
Archibald J. states that in determining whether a person “appears to be mentally incapable” the following factors should be considered:
(a) The person’s ability to know or understand the minimum choices or decisions required and to make them;
(b) An appreciation of the consequences and effects of his or her choices or decisions;
(c) An appreciation of the nature of the proceedings;
(d) The person’s inability to choose and keep counsel;
(e) The person’s inability to represent him or herself;
(f) The person’s inability to distinguish between relevant and irrelevant issues; and,
(g) The person’s mistaken beliefs regarding the law or court procedures.
Traditionally the Court has accepted the following types of evidence in support of same:
- medical or psychological evidence as to capacity (including, a capacity assessment, report or doctors certificate);
- evidence from persons who know the litigant well;
- appearance and demeanour of the litigant;
- testimony of the litigant; and,
- opinion of the litigant’s own counsel.
Thank you for reading.
I recently read an article by Gregory Wilcox and Rachel Koff, which was published in the fall 2015 edition of the Journal for the National Academy of Elder Law Attorneys, that explores the use of genetic testing and counselling within the context of elder law.
The article describes the three uses of genetic testing as disease diagnosis, determining carrier status, and predictive testing. Historically, genetic counsellors were required to rely upon basic Mendelian genetics that did not often reveal whether someone would eventually suffer from a certain delayed-onset disease. Because of recent developments, however, science now allows accuracy in determining whether a person will suffer (or be more likely to suffer) from a variety of medical conditions. For example, the development of breast and ovarian cancer has been linked to the BRCA1 gene mutation, which can be tested for and discovered in time for adjuvant medical intervention.
Genetic testing is now capable of revealing whether a person may be especially susceptible to conditions that are often associated with aging, including Alzheimer’s disease, Parkinson’s disease, diabetes, and cancer. However, to date, there is limited data confirming that individuals who are determined to be at a higher risk of developing a disease like Alzheimer’s actually do receive an eventual diagnosis at higher rates than the general population. As a result of learning that one is at a higher-than-average risk of developing such a condition, lifestyle changes may be made in an effort to reduce the chances that an increased genetic risk is eventually expressed through the onset of the disease.
Perceived risk of developing a disease that may compromise mental capacity or shorten life expectancy may serve as motivation to obtain assistance in creating comprehensive incapacity and estate plans at an earlier life stage than these considerations might otherwise be made. As the year ends, no matter current health status or perceived risk of developing certain diseases in the future, it is important to take the time to ensure that incapacity and estate plans are put into place and to keep those plans updated following any material change in family situation.
Happy New Year!
Who says estates law isn’t glamorous? A French judge in Nanterre, on the outskirts of Paris, has recently rejected the second attempt by Francoise Bettencourt-Meyers to obtain guardianship over her mother, Liliane Bettencourt. 87-year-old Bettencourt is the sole heir of L’Oreal, the world’s largest cosmetics and beauty company that her father founded in 1909. She is the richest woman in the world, with her current fortune estimated at 17 billion euros.
Bettencourt-Meyers failed to produce a medical certificate and “in the absence of this document, nothing more can be done”, the Paris official said.
According to Aol News, Bettencourt-Meyers wishes to protect her mother from a celebrity photographer who befriended Bettencourt and to whom the heiress has given gifts totaling a billion dollars. France24 reports that Bettencourt accuses her daughter of "vile doggedness" and impatience to get her hands on her fortune.
Whether a guardianship application is motivated by the desire for power and money or genuine love and concern, a court will not interfere with an individual’s autonomy lightly. For information on when a court will order a capacity assessment, see my previous blog on this topic here.
Sharon Davis – Click here for more information on Sharon Davis.
My blog posts this week have been inspired by a Globe and Mail article that a summer student handed to me about the late Gail Posner’s trust provisions for her dogs, Conchita, April Maria and Lucia.
In yesterday’s blog I noted that while Wills are an opportunity for individuals to provide for their loved ones, there is no guarantee that our stated wishes for our beloved companion animals will be sacrosanct. For example, the late Leona Helmsley’s $12-million trust for her dog Trouble was reduced to $2-million by a Manhattan Judge on the ground that the deceased lacked capacity with regard to her Will and the Trust Agreement.
In the Globe and Mail article that inspired my posts this week, Barry Seltzer noted that Canadian legislatures may wish to consider “ante-mortem” probate as a way to ensure capacity does not become an issue in these cases. Ante-mortem probate is a technique used in certain states, including Arkansas, North Dakota, and Ohio, to validate a will while the person is still alive so that it cannot be contested once the person passes away.
In some cases, the wishes of a testator regarding his pets are contrary to public policy and, thus, are held to be void. For example, some pet owners have included clauses in their wills directing that their pets be euthanized upon their death (perhaps because they feel that their animals will be distraught without them).
In one such case a testator (Mr. Clive Wishart) directed that the Royal Canadian Mounted Police (“RCMP”) shoot four of his horses. The RCMP refused and the matter was brought to a New Brunswick Court where it was held that the direction to shoot “four healthy animals” was contrary to public policy because doing so would serve “no useful purpose” and “would be a waste of resources and estate assets even if carried out humanely.”
For those of you interested in reviewing the case, the citation is: Wishart Estate (Re),  N.B.J. No. 547.
Thank you for reading!
Kathryn Pilkington – Click here for more information on Kathryn Pilkington.
My wife has a not-so-secret crush on Dr. Sanjay Gupta. In late May, three and a half months prior to 72 yr old John McCain’s shocking selection of his 44 yr old running mate, my wife caught a Dr. Gupta special on CNN called "The First Patient". The program explored in detail, presidential physical and mental health throughout history and the mechanism for substitute decision-making in this regard.
Interesting topic for a blog I thought to myself.
The 25th Amendment of the U.S. Constitution "deals with succession to the Presidency, and establishes procedures both for filling a vacancy in the office of the Vice President as well as responding to Presidential disabilities" (Wikipedia). This Amendment has only been invoked 6 times since its ratification (and two of these occasions actually involved application of a Section of the Amendment that allowed for the appointment of a Vice President during a Vice Presidential vacancy). Incredibly, the following occasions did not result in the invocation of the Amendement:
- Abraham Lincoln lying unconscious for several hours after he was shot until he died;
- James Garfield being incapacitated for eighty days by an assassin’s bullet before dying;
- Woodrow Wilson suffering from a stroke which left him disabled for the last eighteen months of his term; and
- Dwight D. Eisenhower suffering from a heart attack in 1955 and a stroke in 1957.
Even after the assassination attempt by John Hinkley in 1981, then-President Ronald Reagan did not invoke the Amendment (although there was a heated debate about this amongst his aides).
As an aside, my wife tells me that the 25th Amendment has been invoked 3 times in the television series 24 in seasons 2, 4 and 6 (she’s also a bit of a Kiefer fan).
David M. Smith
Not a neurosurgeon. Not Jack Bauer. But secure with myself anyhow.