On November 7, 2017 Premier Wynne promised $6 million to establish a consumer protection program to safeguard seniors from financial abuse and to help prevent physical abuse.
If Premier wants to combat financial & physical abuse she should increase oversight and direction to the Ontario Public Guardian and Trustee.
Any reasonable persons would consider – an incapable person paying MORE for a service that will return – Financial Abuse. Especially it the financial instution is an appointed guardian, has a fudiciary duty to the person, but the payments for the service only benifit the financial institution.
There are protections against this. SDA 40(3) states:
The guardianor attorney may take an amount of compensation greater than the prescribedfee scale allows,(a) .. if consent in writing is given by the Public Guardian and Trustee and by the incapable person’s guardian of the person
I had written the PGT asking if SDA 40(3) was going to be followed. The PGT’s response was
“Ontario courts have held that investment fees can properly be charged to an estate as an expense, rather than as part of compensation. Accordingly, s. 40(3) of the SDA does not apply and the consent of the PGT and personal care guardians is not required.”
The PGT’s position that SDA 40(3) does not apply as the fee is an expense removes statutory protection for an incapable person for fees in excess of SDA 40(1) and appears to exsist solely to skirt the statuory protections for the person under SDA 40(3).
Worse the characterization the fees are an expense does not jive with facts. The bank describes in its literature and letters the cost for this advice as a fee. The advice is provided by the bank – not an independent third party which seems necessary for the fee to be considered an expense. If the bank is in fact deducting from taxable income, money received for providing a service , there is the appearance of tax avoidance which deserves investigation.
Further the PGT’s suggestion that “Ontario courts have held” investment advice as an expense in other specific cases is without merit. Courts deal with the application of statute and case law to the particulars of a specific case. No court has reviewed the specific circumstances in THIS case. If the PGT believe SDA 40(3) does not apply they should bring a motion to court, site those cases (if they exist).
I wonder whether any court would approve an incapable persons being charged more for the service of investment advice that the service provides int returns, when there is an option – leave the money in cash. My Mother is financially better off – though the bank makes less money. That appears consistent with the banks fudiciary duty.
Unfortunately unusal interpertations of the SDA, and their duties to incapable prsons, is par for the course for the PGT.
In 2015 the PGT supported this bank as property guardian before they had filed a plan. Later a plan was filed but the PGT finance department required it be amended. Two years later an amended plan was finally filed – without a cash flow or income statement.
I had to ask 4 times if the PGT were apply the same standards of review to property management plans submitted by individuals as by financial institutions. At one point the PGT said the same standards do apply, but later it became clear they don’t. Individuals have to provide cash flow and income statements, banks apparently do not. Of banks plan with no cash flow the PGT writes:
I did not say that BMO would be refiling their plan with a cash flow and income statement.
It appears contrary to Section 15 of the Charter of Rights to have different standards of review depending on who the party is, for documents the PGT ultimately submits to the courts for approval.
Condoning Potential Financial Abuse
The bank did not follow the first filed plan – which the PGT knew – leaving the person at financial risk. Quarterly reports, proposed in the June 10, 2015 plan were not provided for 2.5 years. When a complete financial picture was finally provided on October 6, 2017 it revealed:
- a transfer of $442K from an account my mother had chosen, to the property guardian, while my Mother was ‘deemed capable’. She did not authorize the transfer. No one else had authority to make that transfer at that time. The bank was entitled to bill $13.2k on receipt of that money. Not disclosing that transfer, or who authorized, appears to be a material omission of fact that it may have influenced several court decisions. This situation arose as the PGT took no action on my numerous requests the June 10, 2015 plan must be followed per SDA 32(10) until an amended plan was filed under 32(11).
- Also disclosed was a $42.4K in payments to the S. 3 lawyer. This amount is for work the lawyer was NOT hired for, relating to a court hearings the lawyer could NOT participate in.
- In addition there is a $3K in payment to the same S. 3 lawyer to research collections when legitimate bills are guaranteed by statute (SDA 3(2)).
- A further $3.5K the S. 3 lawyer billed my mother to write the property guardian’s management plan, consult with them to approval it, and swear the required affidavits. The appearance is my mother’s S.3 lawyer is also working for the property guardian.
That the property guardian approved paying the lawyer for fees they benefited from has the appearance of a conflict of interest. This is reinforced as the S. 3 lawyer ‘negotiated’ the property guardian’s fees to manage my mother’s assets – including the proposed investment advice fees, which statute says she had no authority to authorise.
While my mother was still ‘deemed capable’, the PGT approved of a proposal that my mother’s PoA for property be replaced with an interim Order (April Order) directing the S. 3 lawyer to instruct the financial institution. Part of the April Order required my mothers belongings, removed by my brother to his house, to be returned to her. The Order was not followed.
Later the property guardian brought a motion my mother’s property, in the possession of others and not missed by her, could be kept by them until her death. One protection my mother lost by the PGT not insisting the June plan be followed, was a requirement the property guardian consult her regarding her property. Neither the PGT appointed S. 3 lawyer or the PGT endorsed property guardian spoke to her about the motion, or whether she missed her property, before supporting the motion in court.
Neither informed the court the property in question was earlier Ordered returned, but that Order was not followed. The PGT knew of this but did nothing.
Condoning Potential Physical Abuse
My consent to the April Order was obtained as the S. 3 lawyer said they would not approve the removal of my mother from care where she was:
isolated, left in excrement, not fed to control vomiting etc.
The PGT had been copied on correspondence regarding this apparent physical abuse and did not investigate as statute requires.
Later when affidavits were filed that physical assault may have also occurred – the PGT again did not investigate. They also made no submissions to the court when the lawyer and counsel for the alleged abuser brought a motion to suppress the affidavits outlining it.
Material Ommissions of Fact to Court?
On Feb 24, 2016 the property guardian paid the S. 3 lawyer approx $163K for services. The next day that S. 3 lawyer, the property guardian’s counsel and PGT counsel appeared before the Appeal Court of Ontario requesting the S. 3 lawyer be relieved of their duties.
None of them informed the court that without an entered Order declaring my mother incapable the property guardian could not be formally appointed, therefore the interim April Order above remained in effect.
The S. 3 lawyer (who the day before had been paid handsomely) and property guardian are fiduciaries to my mother yet they, and the PGT (who was in attendance) seemed to forget to inform the court of the ongoing need for S. 3 under the April Order. The PGT later argued it was my duty to bring this to the attention of the court.
My mother was left without the protection of a Court Order outlining financial responsibilities while the bank controlled her $1.4M in assets without oversight or authority. This situation arose because it appears the PGT believe they have no duty to protect the finances of presumed incapable person when the PGT is before the courts.
Respecting Person Charter Rights and intent of SDA
The PGT does not seem to understand the role of competence in autonomy, or the SDA provisions ensuring that Charter 7 Rights to autonomy are respected.
The PGT not intervening to stop, in fact supported, changing my mothers PoA for property when she was ‘deemed capable’ is one example.
In August 2015, despite a capacity assessment finding my mother incapable and a Judges decision of incapacity, the PGT argued the S.3, hired to purportedly act on my mother’s instruction, should remain representing my mother.
SDA 2 states that a person should be considered capable as long as there is no reason to believe they are not. Surely a capacity assessment my mother is incapable and a judges decision, are reasonable grounds to assume the person is incapable. If one is not capable one cannot instruct a lawyer. This is the fundamental issue for with leave is being sought under (SCC #37808).
If the Premier is serious about ending financial and physical abuse in Ontario she should look to her own house. The PGT seems to desperately and IMMEDIATELY need oversight and direction.
Long-term the legislation mandating LTC homes report potential physical and financial abuse to the police should be extended to include all PGT personnel and those they hire to work with a presumed incapable persons, including S. 3 counsel & litigation guardians.