Archive for ‘Guardians’

December 9, 2014

Mediation in Elder Law

I often focus in this blog on interesting cases dealing with points of law in estates and elder law.  However, I read an interesting article in this week’s Lawyers Weekly by Marilyn Piccini Roy dealing with the important role of mediation and the mediator in elder law.  Definitely worth a look.

Please note:  The original hyperlink used in this post was not functional.  I believe that the problem has been corrected.  My apologies.

April 28, 2014

Former Toronto charity scene queen charged with bilking millions from elderly Florida woman

We are hearing too many of these stories.  This one gets a lot of press because of the individual involved but we all have stories of how this type of abuse goes on every day.

See the story in the Toronto Star.

 

October 1, 2013

October 1 is National Seniors Day

http://www.seniors.gc.ca/eng/pie/nsd/index.shtml

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April 2, 2013

The Law and Mental Disorders – A Balancing Act

The balance of individual constitutional rights against the legislative objective of providing medical care to individuals suffering from mental disorders can lead to curious results. One such result was illustrated in the recent appeal from the Ontario Consent and Capacity Board (the “Board”) to the Ontario Superior Court of Justice in Gradek v. Shafro.

Mr. Gradek “suffered from a schizoaffective disorder, a bipolar subtype with features of mania”. Mr. Gradek did not agree with this diagnosis and denied that he has a mental disorder. He was admitted to a psychiatric facility on an involuntary basis by means of a physician’s certificate under subsection 20(5) of the Ontario Mental Health Act (“MHA”). He was also found by his physician to be incapable of consenting to or refusing treatment for his disorder with anti-psychotic and mood stabilizing medications (subsection 4(1) of the Health Care Consent Act (“HCCA”)). Both of these findings were upheld by the Board. Mr. Gradek appealed.

Subsection 20(5) of the MHA sets out the conditions for involuntary admission of a patient to a psychiatric facility by a physician. Those conditions require that the attending physician, after examining the patient, be of the opinion that the patient is suffering from a mental disorder of the nature or quality that likely will result in serious bodily harm to the patient or another person, or result in serious physical impairment of the patient, unless the patient remains in the custody of a psychiatric facility.

The Board found that Mr. Gradek’s mental disorder would likely result in serious bodily harm or serious impairment to him. On the facts of this case, the Court did not agree. It agreed that Mr. Gradek suffered from a mental disorder but found that evidence of serious harm or impairment was insufficient. As a result, the Court granted the appeal with respect to the involuntary admission. The effect was that Mr. Gradek could not be held in the facility on an involuntary basis.

However, the Court did agree with the Board’s finding that Mr. Gradek was incapable of consenting to or refusing treatment in connection with his mental disorder. Under the HCCA, such a determination requires a finding that a person is not able to understand information that is relevant to making a decision about treatment and to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Based on Mr. Gradek’s diagnosis, the Court was satisfied that this test had been met. In these circumstances, a substitute decision-maker could make the decision to consent or refuse treatment on Mr. Gradek’s behalf. Unfortunately, he did not have a suitable substitute decision-maker (Mr. Gradek’s mother was a substitute decision-maker but appeared unwilling to continue in that role) *.

Mr. Gradek made it clear that if discharged, he would not take medication for his condition (not surprising given that he did not accept that he has a mental disorder). The net effect then of the Court’s decision is that Mr. Gradek could not be kept involuntarily but will not, at least for the time being, be treated for his disorder.

The decision illustrates how the Courts will jealously guard an individual’s s. 7 Charter right to liberty of the person by strictly applying legislation that may limit that right. In the proper circumstances, the limitation will be allowed. Those circumstances did not exist in this case. The effect of this decision though, is that a person deserving of treatment may not receive it. A price we pay for our constitutional freedoms or a hole in the constitutional/legislative framework? – depends in your perspective.

* The judge did posit that an option here is to arrange for the appointment of a new substitute decision-maker

January 16, 2013

Solicitor/Client Privilege and the Guardian/Committee/Trustee

An interesting quandry for lawyers and guardians was raised in the recent Alberta case of Wayne v. Wayne. Where, due to mental incapacity, a guardian for property has been appointed for an individual (in Alberta a trustee, in B.C. a committee), does the guardian have a right of access to documentation and communications between the individual and her or his lawyer that would otherwise be subject to solicitor/client privilege? The answer, as is often the case, is “it depends”.

In this case, the guardian, a son of the affected individual (his mother), sought access to a solicitor’s file with respect to certain transfers of land by the mother. On behalf of the mother, the guardian commenced an action in respect of the transfers and on application to the Court sought an order requiring the lawyer to provide his file. The lawyer opposed on grounds of solicitor/client privilege.

In deciding that the son should have access to the lawyer’s file, the Court reviewed Alberta’s Adult Guardian and Trustee Act (“AGTA”), Protection of Personal Information Act (“PIPA”) and the common law on solicitor/client privilege. While recognizing the sanctity of solicitor/client privilege, the Court found that s. 72(4) of the AGTA created a limited legislative exception to the general rule concerning solicitor/client communications, which exception was not overridden by the PIPA. Section 72(4) deals with access to personal information of the affected individual, providing that “[a] trustee is entitled to access, collect or obtain from a public body, custodian or organization personal information about the represented adult that is relevant to the exercise of the authority and the carrying out of the duties and responsibilities of the trustee”. A law firm is an “organization” under that section. The PIPA allows for the release of information where disclosure is “in the interests of the represented individual and consent of the represented individual cannot be obtained in a timely way or the individual would not reasonably be expected to withhold consent”. Given the mental incapacity in this case, consent of the individual was not possible.

The Court found that in interpreting these sections, the legislative scheme “does not grant a trustee full access to the represented adult’s file. Rather, a trustee is entitled to material otherwise protected by solicitor-client privilege that is relevant to the exercise of the trustee’s authority and the carrying out of the trustee’s duties and responsibilities”. In this case, the Court found that the file sought was relevant to the issues raised in the lawsuit commenced on behalf of the mother and therefore disclosure was ordered as relevant to the exercise of the trustee’s authority and the carrying out of the trustee’s duties and responsibilities.

Of note, as part of it analysis, the Court recognized that that in situations where there has been a death, as opposed to a guardianship, the common law recognizes that solicitor/client privilege “survives the death of the client and enures to his or her next of kin, heirs or successors in title”.

Query how this situation might be dealt with in Ontario. The provisions of Ontario’s Substitute Decisions Act (“SDA”) differ from those of the AGTA. Section 31.1 of the SDA states that “[a]ny person who has personal information about an incapable person to which the incapable person would be entitled to have access if capable, including health information and records, shall disclose it to the incapable person’s guardian of property on request”. This section does not include the limitation of the Alberta Act that the disclosure be “relevant to the exercise of the authority and the carrying out of the duties and responsibilities of the trustee”. As for applicable privacy legislation, the commentary included in Schedule 1 of the Personal Information Protection and Electronic Documents Act recognizes that the requirement for consent of the person prior to disclosure of personal information may not be possible (and therefore not always required) in certain circumstances and specifically references the example of mental incapacity. As a result, it is arguable that under the SDA the exception to solicitor/client privilege may be broader in Ontario.

October 22, 2012

End of Life – How do We Balance Roles?

An interesting look at the difficult balance between the roles of the family and of medical practitioners in end of life decisions.

http://www.thestar.com/news/canada/article/1274426–a-wife-wants-her-husband-kept-alive-at-all-costs

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September 26, 2012

Aragona v. Aragona – An Update

In March, I commented on the Ontario Superior Court of Ontario decision in Aragona v. Aragona, where a son of a woman suffering from Alzheimer’s disease was appointed in 1999 as guardian over her property.  Among other abuses, the guardian was found to have withdrawn and deposited to his own bank account approximately $122,000 without 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 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.

The case was appealed and a decision rendered by the Ontario Court of Appeal on September 26, 2012.  The Court of Appeal upheld the lower court decision with the exception of a small contingent allowance for recovery of some legal fees paid in the interest of the estate.

One ground of appeal raised by the guardian was that he had not received a fair hearing because the respondent, his brother, had taken the position through counsel that he was not challenging disbursements on the application to pass accounts.  While arguments were raised about whether the disbursements were or were not challenged, the Court found that, regardless, the fiduciary obligation of a guardian of property under s. 32 of the Substitute Decisions Act, 1992 to act “with honesty and due care and attention” required a guardian to be in a position at all times to prove the legitimacy of disbursements made on behalf of the estate.  Therefore, regardless of whether objections have been raised in a passing of accounts, a guardian (and a trustee or executor) should remain diligent at all times regarding its accounting and always be prepared to justify accounts.

May 10, 2012

Here’s a Twist

Any practitioner in the area of estates law will know that there is no end to the disputes that arise between family members in connection with the administration of an estate or how an elderly parent should be cared for.  With respect to attorneys or committees for property and/or personal care of an aging parent, the disputes tend to be about the inappropriate or excessive use of funds entrusted to the attorney, usually for personal reasons, and possibly linked to neglect of the needs of the parent.  That is why a recent Manitoba case caught my eye – for another reason.

A dispute arose between siblings as to which should be named as committee of the property and personal care of their mother, who was found by the Court to suffer from mental incapacity.  One sibling had been named as attorney in a power of attorney executed by the mother and had been dealing with the mother’s care and finances for several years.  Her sister brought an application to have herself appointed as committee in place of the attorney.   The case is interesting because one of the grounds alleged for removing the attorney was that she had improperly dealt with the mother’s finances, not by diverting funds or speding extravagantly, but by not spending enough.  The opposing sister took the position that because the mother’s bank account showed little activity, such was evidence that the attorney was neglecting her mother’s needs.  The attorney’s evidence was that she had paid for several of her mother’s needs from her own funds, for which she was not seeking reimbursement.  The Court did not buy the opposing sister’s argument.

Seems like a case of “damned if you do, damned if you don’t”.

Parker Bruederlin v. Parker

March 8, 2012

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