Fiduciaries are supposed to act in the other persons interests. The Substitute Decision Act says the guardian (and attorneys) are “a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.”(32.1)
My mother had a coin and stamp collection that she had inherited from an uncle years earlier. In 2009 she passed it to a family friend to be assessed. After assessing it the friend gave it to Andrew to return to Mom on his next visit. Despite several visits, it was only when the friend followed up with Mom to confirm the return that Andrew returned the collections.
In April 2012 when a 9.9 hp motor “disappeared” from Mom’s house. Caroline and I had seen the motor in the boat shed the previous fall. I emailed Michael asking if he knew anything. His initial response was “I have no idea where it could be”. The next day Michael writes that Andrew took the motor “when we divided up the items in the basement” when Mom wanted to clear up the basement. He went on:
“I do not claim to remember who got what and had no interest in keeping an account .. I couldn’t care a damn whether or not that was the case, since my understanding was that the aim was to clear the place of impedimenta.”
No one but Andrew remembered Mom giving him the motor.
Curiously when Andrew removed Mom to his house in the spring of 2014 one of the things he took was the coin and stamp collections. When this was discovered Michael wrote:
“According to our lawyer he is acting properly to safeguard and verify Mom’s property.” (Michael Nov 17, 2014)
Five and a half months later an Urgent Order compelled Michael to deliver Mrs. Childs “together with her belongings and medication“ to Sand Lake. The coin and stamp collections were not returned though they are Mrs. Childs belongings.
On October 22, 2015 BMO brought a motion that stated in part “personal property currently in the possession of other family members shall be preserved and retained” essentially allowing material that had NOT been returned under a previous Order to he held by the party that did not return it.
BMO did not consult with Mrs, Childs to see whether she got enjoyment from looking at or reviewing the stamp and coins despite there plan stating they would.
BMO the property manager was “a fiduciary with an obligation to exercise their duties with diligence, honesty, integrity “for the incapable person’s benefit”. They did not inform the Judge that property Ordered returned under one Order was ordered not returned under another. They too did not consult with Mrs. Childs.
We brought the above to the Judges attention – but the motion was accepted and Andrew was allowed to keep material that an earlier Judge had Ordered returned.
At the End of November 2015, Andrew delivered the coins and Stamps to BMO. If they are still there, there is no Order allowing BMO to hold them and they have made no steps to return them to Mrs. Childs – though they did indicate they would charge Mes Childs to hold the material.