If you become incapable in Ontario – you’re at risk. If you’re appointed to act for an incapable person you’re at financial risk.
This site is about Childs v Childs a cautionary tale about three decisions (June, December & an Appeal) and a legal system that punishes fiduciaries that act according to an incapable persons wishes, the incapable persons Power of Attorney and the Substitute Decision Act, and rewards those that don’t.
My mother has dementia but still wants to live out her days in her home. She has an annual income in the top 7% of Canadians and assets to match. She can afford to stay at home.
And she was able to live at home for 5 years. For 2 years and 4 months my sister lived with and assisted her. For three months I did. I had to stop because two brothers, who are legally bound to act in Mom’s interest, refused to allow my Mothers funds to be used for respite care when I wanted to return home occasionally to be with my family.
One of those brothers took over care promising that Mom would spend most of the time at her home. That lasted less than 2 months. He moved her to his home. We were not consulted nor did we approve this move. Although my sister and I also had Power of Attorney for Mom we also had our calls restricted to 1 hour/week on Sunday between 12 – 1. Visits were restricted too.
They then filed an application to overturn Mom’s 4-person Power of Attorney and appoint themselves guardians, place Mom in a low rent long term care home, sell her home and manage her assets. Their lawyer wrote
“her last capable wishes become largely irrelevant” – JJ – Michael’s Lawyer
My sister and I were fiduciaries and knew of Mom’s wish to live at home. We could do nothing or we could file a counter claim. We chose the latter believing the courts were just, reasonable and would consider Mom’s wishes as the Substitute Decision Act requires. That was a mistake.
Everyone in the system seems to have an agenda – most of it around extracting money from the incapable person. Of course this is dressed up as acting in the incapable persons’ interest, The Act says the incapable person is deemed capable to instruct, which my mother is, and the court appointed Section 3 lawyer launches a motion that results in an additional $100,000 in billings saying she us uncertain of what Mrs. Childs wishes would be
“if I had presented this new information to her,” WG – Section 3 Counsel
That’s not acting on instruction – or even seeking it. That same Section 3 tied the appointment of BMO to manage Mom’s money to removing Mom from deplorable care at Andrew’s. It would emerge that Andrew routinely left her overnight in excrement, didn’t give breakfast to stop ‘vomiting’. Mom reported that Andrew hit her. Section 3 never met with her client about this report and put Andrew forward as a potential guardian. Of the hitting Judge Tranmer stated
“Has that beating taken place since June 18th? All right. So, what possible relevance ..”. Judge Tranmer – August 21, 2015
But the same Judge said of his own Decision
“So, maybe that is unfortunate wording or misleading wording Judge Tranmer – August 21, 2015
Then later says “I reject the suggestion by Caroline and Peter that they misunderstood my order or their actions since that order were solely intended to comply with that order.” You can decide what you think the Order meant by taking this 3 question survey.
He actually meant Decision. Hearing after hearing occurred without any Order for the previous Decision being entered. And that occurred because Section 3 insisted either on terms for Orders that were not in the Decision, or removing terms that were part of the Decision.
And through this, the Public Guardian did nothing to protect Mrs. Childs. He was informed that Section 3 was acting without instructions from Mrs. Childs as the Substitute Decision Act requires. He did nothing. Approved BMO without knowing whether their fees would be $69,709.00 or $155,775.00 if fees over 5 years. Argued that medical notes that my mother was left in excrement by my brother should be suppressed. As he did when she said she had been hit.
Through it all I have acted as I believe I was supposed to – deferring to my mother’s capable and current wish to live at her home and was willing to allocate her considerable resources to that goal. At every step, I have been opposed by those that disregard her wishes, health and safety in the name of justice, the law and her interests.
But it isn’t just me who thinks there are problems. The Law Commission of Ontario has a study of the courts and competence issues. One of their recommendations is a specialised court familiar with the act and issues. That can’t happen soon enough.