One Way to Deal with Elder Abuse by a Guardian

Unfortunately, safeguards available to vulnerable people from the dishonest acts of those closest to them remain woefully inadequate. Too often, damage done is only dealt with long after the abuse has started.  A decision released this week by the Ontario Superior Court of Justice illustrates both the shortfalls in the guardianship process and the Court’s attempt to punish dishonest conduct.

In Aragona v. Aragona, a son of a woman suffering from Alzheimer’s disease was appointed in 1999 as guardian over her property.  He passed his accounts in 2001.  At that time, the assets under guardianship consisted of approximately $150,000 invested with a investment brokerage.  In 2004, the guardian was ordered to pass his accounts again and to do so every three years thereafter.  He did not.  The mother passed away in 2010 and the son was again ordered to pass his accounts.  Following an unsuccessful appeal of that order, the passing of accounts finally took place in January 2012.  On the passing, the guardian was unable to explain large withdrawals from an estate requiring relatively modest expenditure.  The Court found that the cost of the mother’s care should have been covered by revenue from her assets, along with what government assistance she received.

In March 2010, the mother’s assets were worth a mere $46,000.  The guardian had withdrawn and deposited to his own bank account approximately $122,000 since 2001 and, while he protested that the expenditures were for expenses of his mother, he was unable to provide documentation or a reasonable explanation for the withdrawals.  The guardian was also unable to explain most of the expenditures for certain legal fees paid for with his mother’s funds. 

The Court clearly found the guardian’s behaviour to be abusive, stating:

“I am constrained to say that the conduct of Beniamino Aragona has been shocking.  He has literally helped himself to many thousands of dollars from his mother’s estate, at a time when his mother had Alzheimer’s disease and was unable to look after her own affairs.  Beniamino Aragona treated the money in the estate as if it was his own.”

After taking into account the improper withdrawals, adding the legal fees improperly charged to the mother, and deducting amounts properly charged to the estate, the Court ordered the son to pay to the estate a total of over $132,000.

The Court likewise denied the son’s request for compensation in its entirety.  In addition, the Court rejected the guardian’s claim for costs of the application to pass accounts and in fact ordered that the guardian pay the costs of the passing personally.

Of course while this case and others like it* are helpful in dealing with dishonest guardians, the process unfortunately did little for Mrs. Aragona when she needed it most.

*See Zimmerman v. McMichael Estate

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