Appeal Decisions (2017 ONCA 0516) part 2

Posted on June 26, 2017 by dignifiedcare

The Appeal Decision can be found here, and a summary of the decision found here.

The June Decision which this section references can be found here

The issue of whether the June 25, 2015 decision was to have Caroline, who was appointed guardian of personal care, be a manager of care or the 24/7 caregiver is central to whether the Motion to Vary, and the subsequent Variation hearings, were Valid. Paragraph 46 of the decision seems clear “She is to be the manager of

Paragraph 46 of the decision seems clear “She is to be the manager of care not the primary care attendant”. The panel took the position that you have to look at that paragraph in light of the whole decision but then ignore paragraph 47 where the application Judge outlines that the $500 award was chosen based on submissions.

There were two submissions for $500/ month – Andrew and Michaels at paragraph 25 for caregiver services, and Section 3 at paragraph 27. where Caroline is to be the manager of care not the caregiver.

When that is included the distinction between being the manager and the caregiver seen in paragraph 45 and 46 seems clear – the submissions the application Judge was relying on was Section 3’s – that Caroline be a manager of professional caregivers. This is supported by Mrs. Childs wish, reported to the court by Section 3 in the factum of Eileen Childs, that wished she be care for by professionals.

The panel suggests that the Judge was misled by Caroline as it was alleged that she stated she would provide care whether she was compensated or not. That position is difficult to reconcile with paragraph 15 of the June decision where compensation for past and future care is to be adjudicated, at 18 where compensation for care is outlined to have been a long-standing issue, at 20, 21 and 22 where the specific amounts requested are outlined. These amounts are consistent with the management plan filed to support in home care. It is interesting to note in that plan Caroline was not intending to charge for guardianship but was intending to charge for care – if she provided it.

There is no evidentiary basis for this statement as there is no transcript for this hearing. The support cited by the panel is the Judges the statement that Caroline said she would provide care at no cost. One has to look at the reliability of his observations in light paragraph 18 where in two consecutive sentences he states that Andrew has never agreed to compensate for care and that his lawyer proposed compensating Caroline $150/day for in home care. I would suggest that the question was about charging for guardianship, not care, and that the Judge failed to make the distinction between two opposing positions – as he did regarding Andrew compensating for care.

Much is made whether the words “live at Sand Lake” reference care or simply being an on-site to provide to provide consistency of management. If the court intends that living with an incapable person automatically requires providing 24/7 care the implications for family members living with an incapable person are profound as would be the pressure such a decision would put on the provinces already strained long term care facilities. It is more reasonable to assume that the statement means simply that – living with her mother. It is all the more reasonable when one considers that the Section 3 initially reported that Mrs. Childs did not want her children living with her but changed this wish on May 19, 2015 to be that she would be happy to have Caroline live with her.

The June 10, 2015 factum of Eileen Childs written by Section 3 contains an Order sought with the following terms:

“b) The appointment of Caroline Childs as guardian of care with the provisions to allow Caroline Childs to live with her mother at Sand Lake rent-free and with her food provided without cost (ie room and board)

  1. c) A further amount of $500 per month to be paid to Caroline Childs as guardian of care to be reflective of her managerial role in overseeing professional caregiving, and not an amount that equals the actual professional caregiving itself”

The factum supports the $500/month by citing Kiomall vs Kiomall where a family member was compensated for managing the hiring of caregivers for an incapable person. This is consistent with settlement letters which stated that “We are trying to impress upon her the importance of her not being the actual caregiver but that she pay for professionals to look after Mrs. Childs daily. Mrs. Childs needs constant attention.”

Posted in Care, Judges, Law Reform, Legal issues, Section 3 | Leave a comment

BMO

Posted on June 25, 2017 by dignifiedcare

Thanks to CBC’s GoPublic we have heard stories of banks forging documents, selling customers services they don’t need, and the pressure on bank employees to meet sales targets.

Now imagine you are incapable and the only thing standing between you an a fleecing is the Public Guardian and Trustee and a court system so overburdened it cannot try serious crimes in time – let alone examing subtle issues in personal finance.

My mothers court appointed Section 3 counsel inserted BMO into an order to have my mother removed from care where she was left in excrement, isolated from friends and family etc. If we didn’t agree the order would not proceed. Mrs. Childs would remain in deplorable care.  There was no review of whether a bank was needed as my mother had an existing POA. No consideration of other banks.  Later we would learn Section 3 used to deal with the BMO account manager when she worked at another bank.

Section 3 then wrote BMO’s management plan to be appointed guardian, swore affidavits for them –  but billed my mother $390/hour for these ‘services’.  Section 3 also negotioted BMO’s fees – in excess of the amount Act allows without following the defined approval process for those extra fees.

Interestingly it would be BMO that would review, and approve or challenge Section 3’s fees – including the fees that BMO benefitted from.

The management plan Section 3 wrote for BMO wrote ignores legal obligations prospective guardians have. The person is supposed to be informed both of the plans approach, and that they can oppose the plan. That didn’t happen – instead the plan lists “through Section 3” which is interesting as Section 3 didn’t start writing the plan until after the last time she met with Mrs. Childs.

And the plan was not followed. It says “Retain valuables as long as Mrs. Childs can use/enjoy them. BMO will inventory and appraise, if necessary, valuables.” but in October brings a motion that her property could be kept by other. They did not speak with her.

The plan says ” Quarterly reporting of Mrs. Childs assets to be delivered to each of Mrs. Childs children” No quarterly reporting has occured.

But maybe this is not surprising. Despite the Act stating that a guardian of property must follow their plan, BMO took the position that they did not need to as the Judge allowed them to file an amended plan. It’s almost 2 years later and Mrs. Childs still does not have the protection of a filed plan.

And the Act says that the guardian of property should consult with the incapable person. BMO has never spoken with Mrs. Childs.

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Appeal Decisions (2017 ONCA 0516) part 1

Posted on June 25, 2017 by dignifiedcare

The Appeal Decision can be found here, and a summary of the decision found here

Section 3, Capacity and Acting under Instruction

The panel had been asked to rule on when incapacity is official declared (on an assessment, on a judgement or on an entered order) and how that relates to the deemed capacity to instruct Section 3 counsel. The panel ignored that legal question but lauded the actions of Section 3 and her advocacy for her client.

When capacity is lost, has profound legal implications. It determines when the scope of your ability to control your life ends. It determines the type of lawyer you choose, or if one is appointed, whether they are a Section 3 or a litigation guardian. It is a gating factor for the appointment of a guardian or attorney. And of course, it determines who has authority to change the your legal documents such as banking arrangements.

Section 3 counsel is appointed when capacity is at issue at a hearing taking place under the Substitute Decision Act.  The person is “deemed” capable to instruct counsel, but the incapable people has none of the protections in typical a lawyer/client relationship. They do not choose the lawyer and cannot fire them. And they cannot withhold payment, or set limits on legal fees, as they are obligated by statute to pay Sections 3’s bills if they have the means. The incapable person typically does not attend hearings so does not know what is argued on their behalf.

Section 3 is not a substitute decision maker, but exists to assist the court in determining the persons capable wishes and instructions. The corollary is that a declaration of incompetence must end the “deemed capable to instruct” as to do otherwise would have a known incapable person, whose judgement has been determined to be faulty, being able to issue what are accepted as legally capable instructions.

The “deemed capable “instructions are protected by lawyer client privilege. Whatever the lawyer advocates is accepted by the courts as the persons instructions. It falls to the professionalism of Section 3 to inform the court if they believe the person is not capable to give instructions as despite the Act’s deeming provisions, as it is unlikely a person who is incapable has the agency to object.

In this case Section 3 requested the court change the no heroic measures clause of Mrs. Childs Power of Attorney to do not resuscitate – and that this be registered so first responders would follow it. The potential implications on Mrs. Childs life could be profound, as the Judge pointed out – seeking assurance these were Mrs. Childs instructions. Section 3 demurred.

The issue of whether Section 3 was acting under instruction, or acting as a substitute decision maker, ripples through this case. Section 3 last met with Mrs. Childs, to seek instructions, on May 19. Section 3 remained active in the case another 9 month. Even a capable person can’t provide instructions clear enough to cover all the motions that were launched and positions that were taken.

Mrs. Childs had a capacity assessment on May 14, 2015. The report was released on May 25. Mrs. Childs was determined to be incapable for both property and personal care. In his June 25, the application Judge found Mrs. Childs was incapable.

On August 14. the same Judge ruled that since a formal Order was not entered there was no declaration of incapacity and no need to appoint a litigation guardian.

On October 21st Section 3 tells the court “Once there is an assessment of incapacity and indeed, a finding of incapacity, even though we don’t have an entered judgment, it would make a mockery of section three for me to return to seek instructions from Mrs. Childs.  I would, under a Court order, however, it risks putting me as a witness instead of counsel.”

Taken together it seems to me that Mrs. Childs lost the protection a litigation guardian, who is not afforded the protection of lawyer client privilege as the client is not “deemed capable to instruct” while having a lawyer who would not seek instruction because she believed Mrs. Childs to be incapable, but appears to want to protect her ability to act with lawyer client privilege.

This issues ripples through the case.

Posted in Decisions, Legal issues, Section 3 | Leave a comment

December Decision (2015 ONSC 6616)

Posted on June 25, 2017 by dignifiedcare

In his December Decision the Judge stated:

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.

He refers repeatedly to paragraph 46 of the June decision – but never once quotes it. It says:

[46] Going forward as guardian of her mother’s personal care, Caroline’s role is as the manager of personal care rather than the primary personal care attendant. There are sufficient assets available to permit proper homecare to be provided for Eileen Childs in her home. Caroline will have to manage assessing the proper services and caregivers and she should do so to provide fully for the best interests of her mother”

That is not the only paragraph that suggest Caroline is to be a manager not a caregiver. Paragraph 27 suggests where the Judge got this idea “She [S. 3] submits that Caroline is to be the manager of the future care, not the caregiver, in her capacity as a guardian of personal care.  At paragraph 42, $25,000 or $833/month is awarded for  “her personal car services for the past 2 1/2 years and for the past two months”. At paragraph 45 he states “with respect to the compensation for Caroline as guardian of personal care … that is a distinct issue from the direct caregiving that has taken place in the past“. While at 47 he says “fair, proper and reasonable compensation from this time forward is as suggested during submissions … namely the sum of $500/month.” Two submissions were made regarding the $500/month – that of Section 3 at paragraph 27 to be for, and that of Andrew and Michael at paragraph 25.

If in awarding $500/month to Caroline as guardian of care, Justice Tranmer meant her to be a manager, and possibly non-primary caregiver, as [46] suggests, the amount allows for approx. 33hrs/month at the Kiomall rate. If, however he meant her to be the 24/7 care-giver as Andrew and Michael proposed and he insisted was his intention August and after he ignored the evidentiary basis provided to the court, and outlined as relevant in Re Brown, ignored the principal that the amount awarded should be sufficient to attract others outlined in Sandhu (Litigation Guardian of) Wellington Place Apartments, ignored the amount paid and its reasonableness for the service and in relationship to the persons’ total assets outlined in Kiomall.

Further reading paragraph 46 note it is a single role, manager and it is identified as distinct from the other necessary role “primary care attendant”. The paragraph goes on  that “sufficient assets” refers to the fees required for professional care givers – as the decision set Caroline’s fees at $500/month as guardian and live-in manager. That the care is to be provided by professionals is further emphasized by the statement: “Caroline will have to manage accessing the proper services and caregivers” Access implies that those care givers come from somewhere else and need specific arrangements to use them.

The Judge does not agree. First he states

“So, maybe that is unfortunate wording or misleading wording,”
And later
“But she can manage herself, she has got to manage herself. That is part of managing the Mom’s care, I think”

On June 30 we wrote all counsel stating we are working to implement the terms of the decision; specifically our understanding the court defined Caroine’s as “a personal care guardian” and not the primary caregiver.”

On July 7 we wrote you as Section 3 intended to seek your support for a motion for reconsideration; whether we consented or not. Our letter quoted the specific paragraphs from the decision, provided a copy of the June 30 letter and provided specifics on our understanding of primary caregiving being more that ½ the time – or 85 hours per week.

If you had concerns about the clarity of the paragraphs sited you said nothing. You allowed the motion to proceed.

The role of the manager is set in opposition to primary personal care. That is the crux of our June 30 letter and our letter to you on July 7.

In our letter to you, before you had decided to hear the motion, we drew your attention to the fact that this accelerated Car-O-Line’s guardianship plan, by introducing third party caregivers faster that she would otherwise – but it does not change it. Nevertheless at the August 21 hearing you state:
“she would manage her mom’s care needs through her own services and through outside professional help as required, as she indicated she would do in her guardianship plan” Transcript 73(20).
As if Car-O-Line proposing to provide 1 hour less than ½ the weeks care is not the best she can do while NOT being the primary care attendant.
How could we know that we were not to read the decision literally? That is the only new information.

We are today facing a motion to remove Caroline as guardian, and huge costs risks, because we suggested we intended to act on words that you say are unfortunate or misleading and we paid attention to phrases that you don’t consider as part of that paragraph.

To add to this is on September 17, knowing that in a month you would reconsider your decision, you felt confident the you were not going to favor us by assigning us costs for a decision that might change.

On August 21 you say “there could well be a miscarriage of justice played upon Eileen Childs” 71(5) if the current circumstances are not reconsidered. Rather than clarify the words used in your decision so they can be clearly followed – you suggest that the Caroline’s entire guardianship be reconsidering. That seem extreme given the years of care she has already provided, and the acknowledged benefit Mrs. Childs has received.

To be clear, though professional care has increased slightly, Caroline is still the primary caregiver. It is through that care that Mrs. Childs has improved. The appeal was to reinstate Caroline as Both guardian and primary caregiver – but to do this at a living wage, and with reasonable respite, so that it could continue as long as it was in Mrs. Childs interests and benefit.

And to issue costs on September 17, you would have reviewed the settlement letters. Included Section 3’s June 17 letter stating:
“We are trying to impress upon her the importance of her not being the actual caregiver but that she pay for professionals to look after Mrs. Childs daily”
That statement is entirely consistent with the information contained in the Factum of Eileen Childs and presented to you on on June 18 by Section 3 counsel.

It leads logically to paragraph 46 of your decision that Caroline be a
“manager of personal care rather than the primary personal care attendant.”
And it is consistent with the stipend of $500/month to manage caregivers but not be the primary care attendant.

At the June 18 hearing our counsel raises concerns about Section 3’s fees. On August 21 ahead of reviewing material for your costs decision you suggest there will be no review of those fees. A decision was made on the reasonableness of Section 3 fees ahead of a costs review.

Posted in Judges, Law Reform, Legal issues | Leave a comment

June Decision (2015 ONSC 4036) by Paragraph

Posted on June 25, 2017 by dignifiedcare

Below is a summary of each paragraph of the June Decision as well as some commentary on the paragraph, where appropriate.

Paragraph 5 indicates that Mrs. Childs is incapable for both property and personal care.

Paragraph 6 says Mrs. Childs wishes are set out in the factum of Eileen Childs paragraph 2.  Though not summarized in the decision the key wishes are:

  • She wishes to live at home only as long as it is safe
  • She would like professionals to care for her
  • She does not wish to live with her children. Changing this to stating she’d be pleased to have Caroline live with her.
  • She does not believe her children should be paid to visit or live with her.

Paragraph 7 says that “There is no real issue” Caroline should be appointed guardian of personal care. He notes “there is no evidence to suggest that Mrs. Childs is unsafe in her present environment (living in her home with her daughter, Caroline) because she receives 24-hour care and supervision”. He could have ordered Caroline to be the caregiver or to identify how care giving would occur. He did not.

Paragraph 8 appoints BMO as guardian of property but notes that thought consent is alleged we proposed we be guardians of property according to our plan (which did not need to be amended because it was approved by the PGT).

Paragraph 10 covers the appointment of Michael as Litigation Guardian.

Paragraph 11 order Caroline circulate to her siblings, copies of medical notes and allows any child to communicate directly with third parties providing medical or health care.  This seems unnecessary and outside the Personal Health Information Protection Act.

Paragraph 15 is said to be the issues being adjudicated starting with ‘whether Caroline is entitled to compensation for the care she provided” in the past and going forward – and the quantum of such compensation.”

Paragraph 16 discusses Caroline’s in-home care and the benefit that Eileen gets from it. He says “during Caroline’s care” Mrs. Childs wellness improved and that this is in Mrs. Childs best interests. He does not Order Caroline to be the care-giver.

Paragraph 17 he states that “she would have provided and will provide into the future such care without compensation”.  What was asked was would she charge for guardianship – and she would not – but she wanted to be compensated for caregiving as outline at 18, 20, 21 and 22.

Paragraphs 18 outlines that compensation was an issue from the beginning. That from October 2012 Peter and Michael were discussing compensation. The Judge states Andrew did not agree to compensate and then in the next sentence that his lawyer proposed $150/day.

Paragraph 19 states that no compensation was agreed to. That is incorrect as the quantum was agreed to by April 12, 2013.

Paragraph 20 outlines the claim for compensation for past caregiving.

Paragraph 21 outlines that this rate should apply to the period of April 25, 2014 to June 25, 2014.

Paragraph 22 outlines that going forward she should be compensated at $53,60 which “she submits this is one-half of the market average for a third party to provide such care” and

Paragraph 25 outlines that Andrew and Michael’s “are agreeable to paying her a stipend of $500 per month plus room and board while Caroline lives with and cares for her mother”

Paragraph 27 – Section 3 submits that Caroline is to be the manager of future care, not the caregiver, in her capacity as guardian of personal care.   She should be compensated for that role. and that for that role $500 is appropriate.  Paragraphs 25 and 27 are important as compensation is related to duties.

Paragraph 28 and 29 summarize the PGT’s submissions which is that compensation for personal care is generally modest.  We will see at paragraph 42, when ordering $25,000 for past care giving, the amount is a modest $833.33/month.

Paragraphs 30 outlines that the courts have jurisdiction to set compensation provided (1) the was a proven service (2) it was necessary or desired and (3) that the amount be reasonable.

Paragraph 31 outlines that the “amount awarded must not only be reasonable in relation to the services preformed, it must be proportional to the means of the incapable person” and then notes Kiomall v Kiomall where an award of $3,575/year for 20 hours of work a month for “arranging for paid services”.  Mrs. Childs had cash assets of $1,400,000. A free and clear home worth $450,000 and an annual income of $114, 000 ($65,000 from indexed pensions and $60,000 from various RIFFs and investments) In that light a request for $50,000/year to provide 24/7 in-home care seems reasonable given it is less than ½ the commercial rate and Mrs. Childs wishes to live at home.

Paragraph 32 he again erroneously states that Caroline says she would provide care for no compensation. He notes Mrs. Childs significant assets and may have increased costs in the future. He says that and the erroneous statement that only Peter and Michael agreed to compensate was important factors in his decision.  I suggest paragraphs 20, 21 and 22 outline Caroline expected compensation for caregiving. Paragraph 18 records that Andrew had his lawyer propose $150/day as compensation for caregiving, suggesting that he too agreed to compensate.

Paragraph 33 states that a child should not be paid to care for an ailing Mother. I suggest that this suggests bias.

Paragraph 34 he repeats that Caroline stated she would provide care without compensation. I again suggest his own findings suggest this was not the case.

Paragraph 35 he states the crux of the dispute was the claim for past and future compensation for caregiving – the issue he outlines he was to adjudicate on at 15.

Paragraph 36 he introduces factors to be considered in compensation such as sacrifice or loss by Caroline. It is interesting that these are not mentioned at paragraph 31. Also interesting is that the Court of appeal has found in Granger V Granger that this does not apply.

Paragraph 37 again erroneously state that only two of the boys agreed to compensate.

Paragraph 38 he describes “the care provided by Caroline to this point” as priceless and that Mrs. Childs has benefited immeasurably.

Paragraph 39 says that Caroline is entitled to thanks.

Paragraph 40 outlines that though the care is of immeasurable value without a demonstration of loss, or need (ie to so caroline can pay for professional caregivers) there is no basis to for compensation.

Paragraph 41 he dismisses unjust enrichment.

Paragraph 42 – He orders $25,000 for “personal care services for the 2 1/2 years between 2011 and 2103 and for the past two months” Notes again that only 2 of the brothers agreed to compensate (This is a rate of $833/month)

Paragraph 43 says that the dispute should end.

Paragraph 44 says Caroline should not have brought the litigation.

Paragraph 45 draws a distinction between compensation for guardian of personal care and ‘the direct caregiving that has taken place in the past’

Paragraph 46 states that “going forward as guardian of her mothers personal care, Caroline’s role is as manager of personal care rather than primary care attendant.” He observes “There are sufficient assets available to permit proper home care” and that Caroline will have manage accessing the proper service and caregivers …” Note that the role of is identified manager as distinct and different from the other necessary role “primary care attendant”. The inescapable conclusion that the statement “sufficient assets” refers to the fees required for professional care givers which is further emphasized by the statement “manage accessing the proper services and caregivers” as access implies that those care givers come from somewhere else than from within Caroline herself, as the word access implies separate from oneself.

Paragraph 47 awards the amount of $500/month and free room and board and references ‘as suggested during submissions’. There were two submissions for the $500 amount. Section 3 at paragraph 27 in relation to the role of “manager of future care not the caregiver.”  and at paragraph 25 where Andrew and Michael suggest that amount “while Caroline lives with and cares for her mother”. Paragraph 47 does not suggest which of these he relied on but 47 does talk about “compensation from this time forward” which seems to reference the phrasing in Paragraph 46 which begins “going forward” and echos the submissions of Section 3 re Carolines role being a care manager not the submissions of Andrew and Michael where she was the caregiver.

Paragraph 47 does not identify which of these submissions was the logical base for the amount but 47 does talk about “compensation from this time forward” which seems to reference the phrasing in Paragraph 46 which begins “going forward” and echo’s the submissions of Section 3 that “with respect to future compensation” Caroline is to be the “manager of care not the caregiver”, as Andrew and Michael had submitted. This position is enhanced when one realizes that going forward [46] the $500/month amount as manager is only 60% of the $833.00/month awarded at [42] for previous “personal care services” and that this amount is modest.

Paragraph 48 says “Finalizing this issue of compensation for care” but who is to provide it is still no identified.

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Public Guardian

Posted on June 25, 2017 by dignifiedcare

I first contacted the Public Guardian and Trustee (PGT) in the summer of 2014 to report that my mother had been removed from her home against her wish. They said that she was not on file and did nothing.

In 2015 when the PSW notes for care at Andrew’s suggested Mrs. Childs was frequently left in excrement, the PGT supported this information being struck from the record.

When neighbours filed affidavits that Mrs. Childs reported that she had been struck the PGT did not investigate and recommended the affidavits be struck as these issues had no bearing on guardianship.

As far as I can tell the PGT does not have an investigative capability as would be required to arrive at the truth of anything reported. Without investigative ability, resolution of issues is not possible – at least in the interests of the incapable person they are the final guardian for.

Since the Childs vs. Childs dispute, I have seen numerous other problems with the PGT.

  • They appear to apply different standards when assessing property guardianship plans (family members must include a cash flow, banks do not need to include this),
  • there are no standards of performance (number of days from submission) regarding evaluating submitted plans,
  • they take multiple roles acting as parties during settlement and friends of the court at hearings.

The above occurs as there appears to be little regulation and definition (as also happens with Section 3) in the Act. This should be addressed before any additional roles are added to the PGT.

For instance, the PGT’s role when Section 3 is appointed in ill-defined. Should they oversee Section 3, acting as capable individual in terms of the Rules of professional conduct, legal actions are based on the incapable person’s instructions etc. And to do this should the PGT be able to demand answers of Section 3 that would otherwise be protected by lawyer-client privilege.

And when Section 3 is hired should the PGT have a duty to ensure the Act is complied with by all parties? Seems reasonable – but it doesn’t happen now.

 

 

Posted in Law Reform, Public Guardian, Section 3 | Leave a comment

Calculating fees

Posted on June 24, 2017 by dignifiedcare

The Substitute Decision Act sets out what you can charge an incapable person to manage their assets:

3% on capital and revenue received
3% on capital and revenue disbursed
3/5 of 1% care and management fee (annual value of assets)

Before even being appointed BMO writes Section 3 saying

We will require the investment statements including Nesbitt Burns as soon as they are available to you.  This tells us what is transferrable, cashable etc.

My mother had $700,000 at Nesbitt Burns. Transfers result in immediate fees for BMO – even if the transfer is not necessary.

About October 30, 2015 Section 3 transferred $300,000 to BMO just days ahead of a hearing where their appointment would be challenged. About Feb 17, 2016 Section 3, cost docket suggests another transfer of the remaining $400,000 could have occurred.

The Act allows more to be charged but requires both the Public Guardian and the Persons guardian of care to approve. That didn’t happen as my mothers court appointed Section 3 counsel “negotiated” BMO fees to include

Investment Advisory Services – current prevailing rate
First $ 500,000 – 1.60%
Next $1,500,000 – 1.10%

And what is the proposed “Investment Advice”- to place the money in a money market fund.  Something you and I can do that for free and certainly not worth $15,000/year.

This advice also put my mother’s assets at greater risk, and would result in a net loss of income.

People who are past 75 should be very conservative in their investment. My mother was using insured GIC’s for the bulk of her holdings. Money market funds can lose money. GIC’s cannot. The income from GIC’s and Money market funds are similar so the fee for investment advice come should be subtracted from the income achieved. I could not find a scenario where my mother would not be poorer simply due to the fees.

If the bank does real property management it would charge 3% of the houses value up front, plus 0.6% annually as a management fee. They wouldn’t do the actual property management but would hire and pay another firm to do that. They are already charging 0.6% for management so can they also charge 3% on the payments to a property management firm. They wouldn’t answer.

And because they are not supplying quarterly reports no one knows.

This concerned me so I wrote the banks Ombudsman. They too did not answer the question saying  “While you indicate that your additional questions refer to general policy only, we are of the view that they relate directly to your concerns regarding BMO Trust’s conduct as court-appointed guardian of Mrs. Childs’ property”. The policy questions asked were:

* Is it bank policy to charge incapable persons for your costs to secure their business? (affidavits and management plans)?
* Is it bank policy to let people who are not bank employees and not financial professionals write financial management plans for the bank?
* Can the bank produce cash flow plans? and if so why, after 250 days, can it still not provide one?

 

Make you wonder.

Posted in BMO, Public Guardian, Section 3 | 1 Comment

Law

Posted on June 20, 2017 by dignifiedcare

This section will deal with the relevant law, critiques of the decisions, discussions the issues and how the effect society and incapable people.

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No oversight = no protection

Posted on June 20, 2017 by dignifiedcare

If you’re incapable in Ontario you’re at risk.

Especially with Section 3 counsel. Incapable people have none of the inherent protections in a lawyer client relationship. They do not choose the lawyer and cannot fire them. They are also obligated to pay Sections 3’s bills. And though Section 3 is only appointed when capacity is at issue, the person is are “deemed” capable to instruct counsel.  Whatever is actually said is protected by lawyer client privilege so it’s the lawyers word as to the incapable persons instructions.

Though our case went on for almost 10 months, Section 3 met my Mom for only 3 hours and there were 9 months of hearings after their last discussion. Even a capable person can’t provide instructions clear enough to cover 5 days of hearings, settlement discussions and cost discussions 9 months after the last discussion.

In a normal lawyer client relationship, the lawyer would only act on the clients` instruction.

The Rules of Professional Conduct require “communication at all relevant stages of a matter” (3.1-1 d) and “A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them.” (3.3-1 [1]).
Didn’t seem to happen with Mom.

The lawyer repeatedly advanced positions without ever speaking to her. Motions were launched without approval, settlement offers were dismissed without discussion with her, guardianship plans that were against her wishes were supported without so much as a nod in her direction.

And at every step Section 3’s bill grew and grew.

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Representation?

Posted on June 20, 2017 by dignifiedcare

A Section 3 counsel can be appointed whenever a person who is potentially incapable faces a hearing over any guardianship matter.

Their sole guidance in the substitute Decision Act is the incapable person is “deemed competence to retain and instruct counsel”. The actual role Section 3 is to play in hearing is not defined but the court is instructed in 3 places to consider the incapable persons current wishes. One expects one source for the court to hear that is from Section 3.

One assumes the legislature used such a short definition of duties as the lawyers rules of Professional Conduct require instruction before actions. Section 3 saw it differently. She states

Once there is … a finding of incapacity, even though we don’t have an entered judgment, it would make a mockery of section three for me to return to seek instructions

AND

I am uncertain whether Mrs. Childs herself, if I had presented this new information to her, would prefer to …

As the basis to launch a motion that would result in almost $100,000 in billings for herself, and huge costs to other parties. And all of this is justified by writing “The entirety of the Mrs. Childs’ wishes filed with the court, she understood that there would be a day when she may need to leave Sand Lake and she expressed very clear preferences about where she would like to live in the event of having to leave Sand Lake.”

That assumption is in direct opposition to statements Mrs. Childs made to the capacity assessor after the Section 3 filed the wishes. Mrs. Childs states:

“I want to stay here as long as I can, until I die. Have someone write it down.”

When the capacity assessor asked if she were bedridden, did she think she should go to a nursing home or would she accept help at home. Mrs. Childs stated:

“I would have to accept help wouldn’t I? I am going to stay here as long as I can, until I pack it in.”

And when the capacity assessor suggested she might be happier with more company in a home Mrs. Childs stated

“I won’t go there…..”

Mrs. Childs is quite capable of giving instructions. Was Section 3 incapable of hearing them because she didn’t ask.

Section 3 describes Mrs. Childs statements to the capacity assessor as “incapable wishes”. The Substitute Decision Act uses “capable wishes” for wishes expressed when the person was capable and “current wishes” for wishes when incapable.

Capable wishes must be followed. Current wishes must be considered. Even when acting in the person’s best interest you have to take into consideration “the values and beliefs … the person held when capable” and current wishes “if they can be assertained”.

S 3 said of the Substitute Decision Act’s use of wishes

“It’s a silly word, in my respectful opinion, to use for such a serious issue about life and death, which is what we deal with.”

This is the representation that the Act forced on Mrs. Childs. The Public Guardian was well aware of this and did nothing. It make you wonder how the incapable are supposed to have their interested protected when the Public Guardian is silent and Section 3 neither talks with the client she represents or care about her wishes.

And through 7 months of  “representation’ and 6 days of hearings Section 3 claimed Lawyer/Client privelege – which is designed to protect the clients instruction – but was used to protect a lawyer who did not consult her client.

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