Rules of Professional Conduct

Posted on June 20, 2017 by dignifiedcare

Section 3 of the SDA describes counsel for the incapable person in 168 words, 55 of them cover deemed competence to retain and instruct counsel. The remaining 113 words deal with payment.

There are no guidelines for Section 3’s duties. A lawyer/client relationship, however, is governed by the Rules of Professional Conduct. When a lawyer is appointed under Section 3.1.b “the person shall be deemed to have capacity to retain and instruct counsel.” A normal lawyer/client relationship is presumed.

A normal lawyer-client relationship is defined in 3.1-2 of the Rules of Professional Conduct as that of a “competent lawyer”. Competence includes “communication at all relevant stages of a matter” (3.1-1 d). In the comments, it is clear this communication is with the client. In comments:

  • “[8.1] effective communication with the client will vary”
  • In [12] “the client should be informed”
  • In rule 3.2-1 in relation to the quality of service comment [6] states “a lawyer should be prompt in… reporting developments to the client.”
  • In 3.3-1 [1] – regarding confidentiality, “A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them.”

The other part of a normal lawyer/client relationship is the client’s role, which is to instruct the lawyer. This concept is reflected in almost every rule and comment in the Rules of Professional Conduct, for instance in 3.2-4 regarding Compromise and Settlement, which Section 3 reports Mrs. Childs is desirous of, comment [1] states “When appropriate the lawyer shall inform the client of alternate dispute resolution options and, if instructed, take steps to pursue those options.”

On several occasions, we have put forward suggestions to mediate or arbitrate issues.  Section 3 should have informed Mom and gotten her instructions. That did not occur.

The PGT says Section 3 is necessary so the incapable person had a voice in hearings. They could be only mechanism for the court to know the incapable person’s position. In the Rules of Professional Conduct (3.4-3 [1]) the lawyer is bound to advocate according to the client’s instructions.

In July 2015 Section 3 began an extensive litigation process without instructions from, consulting or even meeting with her client. Instead of speaking with her client she relies on information she filed that was later contradicted by Mrs Childs statements of her current wishes recorded in the capacity assessment. It would be speculation to suggest Section 3 did not speak to Mrs Childs as Section 3 did not want Mrs. Childs instructions as they might differ with her plan to file a motion.

Section 3 stated that her duty was to act on best interests. This is not Section 3 duty. Best interests, according to Section 66(4) of the Act, require consideration of:

  • (a) the values and beliefs… the person held when capable…;
  • (b) the person’s current wishes, if they can be ascertained;

The Act could have applied this to Section 3 either in paragraph 3 or in Section 66(4). It did not. Section 3 is not to present best interests, but to present the client’s instructions, capable wishes and current wishes so that the court and guardian can determine best interests.

But then Section 3 also did not have Mrs. Childs instructions when they suggested that the court alter the ‘no heroic measures’ provision of Mrs. Childs PoA for personal care, to add a do not resuscitate provision. Or when they supported a motion that Mrs. Childs property in the possession of children could be kept by them until her death.

It was as if Section 3 acting on her own personal beliefs – outside her role as Mrs. Childs appointed counsel.

Not consulting with her client, or seeking instruction has resulted in endless litigation, support Michael’s ill-conceived guardianship plan and the imposition of BMO’s property management plan that is still months away from completion. That would be ok if Mrs. Childs capable and current wishes were being followed – but after the statements to the capacity assessor including:

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

Section 3 had an obligation to seek additional instruction but instead proceed without even a grunt of acknowledgement from her client.

Posted in Section 3 | Leave a comment

Manufacturing Incapacity

Posted on June 20, 2017 by dignifiedcare

I cared for my Mother for 3 months ending on Feb 24, 2014.

During those 3 months, my mother had dementia but that did not stop her from walking up and down stairs, washing and dressing herself and generally enjoying life and socializing. We had several dinner parties with her neighbours. Mom always enjoyed these – she enjoyed seeing others socially and contributing when some topic or memory moved her.

“Raising awareness among seniors about their right to live safely and securely is seen as the most important issue for governments when it comes to elder abuse,” Government of Canada

I had to give up care as Michael and Andrew refused to authorize any respite. Andrew refused to share care in any way. If he was going to provide care he was going to do it on his terms or not at all. He did, however, agree – through counsel – that he would provide the majority of care at Mom’s home at Sand Lake.

Warning signs of elder abuse
(City of Ottawa)

  • injuries like bruises, broken bones, bleeding or other injuries
  • sudden loss of weight
  • family or friends will not let you see the person alone
  • your loved one is hostile towards their family or friends
  • you see a family member or friend threatening or trying to control your loved one
  • items or money is missing from your loved one’s house – link to BMO on keeping property
  • sudden loss of income (pension) or retirement savings – link to Section 3’s fees, BMO fees

Within two weeks it was unclear whether that was happening. When pressed Andrew said only “Again if you call the lake and no one answers that means we are at my place.” Thus began Mom’s isolation.

In late April 2014 we were informed by Michael that Andrew and Michael had decided to Mom had to be moved permanently to Andrews. The POA required majority consent.

Within 3 months of being removed from her home Michael reports “Alzheimer’s patients develop serious depth perception deficiencies which make stairs frightening to them and difficult to navigate. They also wander, and frequently hallucinate. They begin to confuse day and night and therefore are up at odd hours. … She has also lost the ability to write; does not appear to be able to read any more; and frequently does not know who people are or how many children she has or what their names are. She no longer can use a knife and needs to have her food cut up for her. Finally, Mom can no longer be left alone in a house at all, so a single care-giver is not an option unless that single person remains with her without a break 24/7. We are not prepared to assent to her returning to Sand Lake to live with these symptoms and in these care conditions.”

We were not allowed to verify these statements. The report outlines a significant decline in Mom’s abilities that I had seen 5 months earlier. Neither Andrew or Michael arranged for medical attention and would not seek it for another 10 weeks.

At the time Michael also suggested other issues would emerge stating “when Mom begins to become incontinent.”  On December 9 2014, 10 months after she had shown no symptoms of incontinence Michael reports “She is now incontinent for both bladder and bowels.”

I don’t know what caused such a precipitous decline – especially as there were no visits to the doctor until 6 weeks before the report above. What I do know is that during each visit I had with Mom in early 2015 she either asked permission to use the washroom or asked if she needed to ask permission.

We would later get reports from Personal Service Workers that during this time  Mrs. Childs repeatedly makes statements like “Thank god a human, I hate those people” and  and “she stated she wanted to get away from here, that she hated them” while “her body language was rigid and she was glaring” suggesting deep unhappiness.

This was the environment when Section 3 interviewed Mom.

Interestingly Mom was returned to Sand Lake under an Urgent Consent Order on April 25, 2015. Within 2 days incontinence disappeared. If she needed to use the washroom she went, day or night.

Within in 2 weeks of being back home, during an assessment by the CCAC and an Occupational Therapist, she vastly happier and more confident. Her manner shows during the capacity assessment. By August 2015 when she is assessed by a geriatric physician she”presented as a well-looking woman who appears actually younger than her stated age. She was pleasant and cooperative throughout the interview” and “that she wanted to be at home and was very content with her current living arrangements”

It was only through Caroline and my actions that this dramatic turn around occurred.

Posted in Care, Dirty tricks, Fiduciary Duty, Section 3 | Leave a comment

Section 3

Posted on June 20, 2017 by dignifiedcare

A Recipe for Abuse

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

Ontario’s ill-defined and enforced Substitute Decision Act almost ensures if there is a dispute.

The worst part is Section 3 which appoints a lawyer to for you when there’s a dispute.

Though you’re thought to be incapable – you don’t hire the lawyer the Public Guardian does that for you – the Act says you’re “deemed capable to instruct counsel”. That’s also its complete instructions for the counsel’s role towards you. And all is say’s for oversight.

I’m sure that the legislature thought that all the lawyer’s Rules of Professional Conduct would apply – but without oversight the legislature has set up an opaque relationship where the lawyer can claim anything – and it cannot be investigated because the client doesn’t have agency and lawyer has lawyer client privilege.

The normal balance in that relationship – a capable client able to withhold payment – is replaced with an incapable one who is obligated to pay legal bills, if they have the means.

One might assume the Public Guardian, who engages the lawyer would provide oversight – but the Act and regulations don’t require it – so they don’t. The entire duty to protect the incapable person’s interests shifts to one or other of the disputing parties.

And scapegoating that party is the ideal defense for Section 3 as they can rely on the other party in the dispute to work with them.

Even the courts provide no protection as they are not set up to deal with oversight as they are an adjudication body not an investigative one.

It’s a recipe for abuse.

Posted in Public Guardian, Section 3 | 1 Comment

Law Commission of Ontario

Posted on June 20, 2017 by dignifiedcare

Below is my submission made to the Law Commission of Ontario study on guardianship

I am one of the Childs in Childs vs Childs, a case under the Substitute Decision Act that is winding its way through the courts and soon into the press.

My experience has given me insight into the Act and the legal processes around it, at least as they apply to the aged with dementia – a group that will grow and increasingly fall under the Act. What I have seen suggests that reform is needed.

The recognition that the role of “decision-making representative” is poorly understood is an excellent starting point but is insufficient unless the proposed recommendations also recognise that too often self interest or convenience are confused with the capable wishes or best interests of the incapable person. My experience suggests this extends to Section 3 counsel and the PGT as well as parties named as attorneys in a Power of Attorney.

At least for the aged much can be addressed by changes not in the recommendations – specifically the training, education and processes around Power of Attorney documents. As a matter of course these should record capable wishes, instructions, priorities and preferences. A recommended form that included places to list these would be a start. Registering these documents with a revised Capacity Board (possibly for a fee) could help by introducing oversight in several important ways – limiting spurious or influenced changes to the documents, providing a contact list of potential attorneys for focused educational materials (duties, competence etc) and of to validate attorneys when they need arises under proposal #22 – which should be expanded to include notification of the Capacity Board.

While not directly related to competence, but a by-product of not having it, the processes around ensuring the conditions of a Power of Attorney are respected is too weak current Act and not addressed in the recommendations. The only recourse should not be the courts if the document is clear and the requirement to record attorney decisions is mandated.

Similarly, the standards for reporting neglect and abuse should apply to every party that comes in contact with the incapable person as occurs in long term care homes. As it stands the PGT does not investigate this (at least in my mother’s case) though one would think that security of the person is an even more fundamental human right than those driven by competence.

Regarding the specific recommendations, I have the following comments in priority:

Paragraphs 28 – 29

The whole area of Section 3 is fraught with problems. First there is no definition of the role beyond the incapable person being ‘deemed capable to instruct counsel’. From the Act one assumes they are to be an unbiased reporter of the incapable persons capable or current wishes – but that is not spelled out. It is also not clear whether they are to act as an advocate, litigation guardian or substitute decision maker. I’ve seen all three in the last 10 months.

And the incapable person has none of the protections a regular client has leaving them open to abuse. They do not choose the lawyer, they cannot fire them and the are obligated by stature to pay – if they have the means. They have limited agency (hence the appointment) which means they are unlikely to complain if the representation is inaccurate, no other counsel can act for them since as soon as they try they would not be barred from seeing the incapable person as the incapable person is represented by Section 3. And Section 3 cannot be questioned in detail about the instructions or relationship with the incapable person as they are protected by lawyer-client privilege. It is a black box that is ripe for over reach and overbilling.

In my mother’s case 3 hours of contact resulted in a $156,000 bill. And my mother was never consulted through 5 days of hearings, settlement discussions, etc. Section 3 supported different persons to be guardians at different times and opposed a court appointed guardian remaining so for reporting my mother’s statements she was struck.

What little protection the Act provides – that Section 3’s bills be approved by the property guardian – are easy to get around. In my mother’s case Section 3 brought an urgent motion to remove by mother from deplorable conditions but tied that the appointment of BMO as property guardian. It was later discovered that Section 3 wrote BMO’s property guardianship plan and swore their affidavits – at my mother’s expense. That seems an conflict and creates an obligation on the part of BMO towards Section 3.

Without a clear definition of Sections 3 role and protections from overreach and overbilling making it an offense to question Section 3’s actions simply increased the power imbalance and removes the last vestige of protection the incapable person has. If Section 3 had visited my mother to get instructions would be one thing – that Section 3 acted repeatedly without her input was a problem that was not rectified even when reported to the PGT – and what the incapable person needs protection from.

I agree that the incapable person should have a voice at hearings but without protection I believe that moderately wealthy incapable persons will increasingly fall afoul of overzealous Section 3 seeking billings at the expense of the incapable person and the family.

Paragraphs 34 – 40

Regarding the appointment of property guardians the first course, even if there is a dispute between attorneys, should be one of the parties named by the incapable person in their PoA provided they did not charge for the service.

The next principal is that where commercial institutions or individual charging fees should get the appointment through a bidding process where the expected fees for the lifetime of the contract exceed $100,000. This would bring their appointment in line with government procurement policies. For individuals with assets in the $1M range these fees could arise in as little as 4 years. Bidding also removes any potential for a reciprocal relationship as described above.

All costs to apply for guardianship should be borne by the applying institution if they are charging property management.

Paragraphs 23 iv, 24ii&iii, 27, 34, 42

I first contacted the PGT to report that my mother had been removed from her home against her wish. They did nothing. When it was reported that my mother was left in excrement and she reported that she had been struck the PGT did not investigate and recommended that 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 in 23iv. Without investigative ability the resolution is not possible.

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.
  • Their role when Section 3 is appointed in ill-defined. Should they oversee Section 3 acting as the capable individual ensuring that meeting occur, actions have 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. Should they have a duty to ensure the Act is complied with by all parties?

The All of this occurs as there appears to be to 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.

Paragraphs 12, 13, 29, 52

I am in favour of more training for all parties that are involved in an incapable persons life.

I would strongly suggest that both attorneys and family guardians have to successfully complete some type of training before they could commence their duties. This could be by a short on-line course dealing with the main duties of the Act and their role with the incapable person. I believe this is preferable to the imposition of monitors as I believe the latter will lead to more legal disputes as the monitor is not the decision-making representative and is likely not in as close contact with the incapable person. That said some type of oversight is desirable for all parties.

While I support 29 I do not believe it goes far enough. Some type of training is needed by all lawyers involved in cases that deal with the incapable. In our case a senior lawyer of an Ottawa firm wrote of my mother that “her last capable wishes are largely irrelevant”. The same lawyer also knowingly allowed his clients to ignore my mothers PoA and break requirements of the Act (isolated her from friends and family). This arose because the lawyers’ duty is to his clients and their objectives with no responsibility to the incapable person. Training might address this if the lawyer was unaware.

I have had experiences with doctors, health service provides and CCAC’s all of whom do not immediately ask for or follow a PoA unless they are challenged. The PoA is the incapable persons first line of defence that their wishes get followed.

My experience with the Superior Court of Justice suggests that Judges do not have an insight into the Act. Not once has any time been spent in hearings trying to get to my mother’s competent or current wishes. The court is to removed from the Act and its consequences on the incapable person. The concept of increased powers for the Capacity review board would be welcomed and may also speed resolution.

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

Compensation for Care

Posted on June 20, 2017 by dignifiedcare

The central issue in the hearings has been what to pay for 24/7 live-in care, if it was provided by a guardian. By the time of the hearing Caroline had provided for about 30 months of live-in care.

At the hearing Caroline was applying for guardianship based on two plans, a guardianship plan and a management plan that together would “honour our mothers wish known to all, to remain in her own home … this wish is well within my mother’s financial means and can be accommodated with the guardianship and management plans”. The guardianship plan stated: “I would begin to employ, part time at first, in home third party care”.

In third-party in-home care is expensive. If it is provided by third-party Personal Service Workers it is $26.75/hour plus GST ($725/day or $264,792 annually). SunLife in a document on in home care costs suggests 24 hour live-in care cost between $19 and $33.00/hour is the range in Ontario. While the Ontario Ministry of Labour states that foreign care workers must be pays a minimum of $11.00/hour and can work a maximum of 48 hours per week. For 24/7 care 3.5 workers are needed. Annual costs $96,380.

In the management plan, Caroline and I had used the annual amount everyone agreed to in 2013. That was substantially less that the lowest of the rates above.

If everyone agreed on the amount why wasn’t it implemented in 2013? Michael insisted on NOT paying Caroline fairly for the first 4 months she provided 24/7 care. That financially advantaged him and put my mothers wish to remain at home at risk. I pointed this out at the time. He would not remove the clause.

A year and a half later Michael removed the 4 months of low pay when it benefited Andrew but also required the same pay to apply to Andrew for care at Sand Lake and care at his home. Mrs. Childs wanted to live at Sand Lake. It was worth more to her than care at Andrew’s. This too was never implemented.

The Judge and Michael say we refused a reasonable pay for 24/7 care offer made in late January 2014.  The amount was fine but that wasn’t the full agreement. That agreement also required Mrs. Childs to be placed, and the cost of care homes was capped at the CCAC rates. CCAC rates cap costs as approximately $2,500/month while retirement homes range up to 8,000/month for rooms and $13,000/month. Mrs. Childs could easily afford every option but for some reason, Andrew and Michael wanted care cost restricted. (this will turn up in the Guardianship Plan the Judge approved in December)

To ensure that compensation for care was an issue when Andrew and Michael filed their application for guardianship they did not seek compensation for care BUT asked the court to award Andrew the same rate as Caroline if she asked. Caroline had provided more than twice the care anyone else had – and all of it at Mom’s home, requiring Caroline to be away from her home, husband and friends and unable to work. Again Michael benefited financially from this:

  1. they would receiving equivalent compensation if Caroline’s efforts are successful
  2. they would receive legal costs, and a larger estate if she was not successful

This heightened the conflict and extended legal costs, around an issue on which there had been fundamental agreement as to the annual amount.

Prior to the June 2015 hearing, there were a series of “settlement” discussions. Michael’s position hardened, though it was him that had proposed the amount for care agreed to in 2013 he would agree to an amount that was 88% less than what he thought was reasonable. That said he had no problems when BMO’s fees simply to manage money were estimated to be very similar to care costs.

Section 3 was particularly obtuse, confounding guardianship with 24/7 care at every turn. While at that same time stating that Caroline should not be the caregiver but the manager of care.

On October 9, 2015 there was a further change – Michael now agreed his April 2013 rate for care was reasonable – but only if caroline was not the guardian. Section 3 proposed that the family law provisions of allowed that level of compensation – when the Substitute Decision Act specifically allows it (contrarty to Section 3’s representations in June) and the Public Guardian had approved a management plan that used the April 2013 amount.

Posted in BMO, Dirty tricks, Section 3 | 1 Comment

A Far Greater Risk

Posted on June 20, 2017 by dignifiedcare

One makes a Power of Attorney to insure your wishes and instructions are followed if you can no longer act for yourselve.

In my mothers case that was the rather odd decision to appoint all her 4 children as attorneys but to require that a majority agree to any decision. In retrospect not including a dispute resolution mechanism was a mistake, as was not writing more of her instructions down.

On numerous occasions Michael and Andrew took actions that affected Mom’s care without the authority outlined in her Power of Attorney. For instance they instituted in home washing. Had Michael and Andrew truly thought in home washing care was important they should have contacted all attorneys, informed them and gotten approval.

Both know the approval of a majority of attorneys is required for all personal care issues. It’s impossible to see washing by a third party, or changing the location of one primary residence as anything other that the most personal of personal care issues.

This action was very similar to the action they took with Mrs. Childs doctor. Again acting without the approval of a majority of attorneys, they contacted the doctor, asked for a recommendation based on only information they thought was important.

Both cases seem to me to be a premeditated attempts to circumvent the Power of Attorney  by surreptitious action when discussion and proper approval is needed.

To leave decisions taken outside the process outlined in the Power of Attorney uncorrected leaves Mom in ongoing risk whose scope cannot be calculated – as unrestrained action could have no bounds.

Michael’s position on the Power of Attorney can be summed up by his statement

all attorneys have been kept fully informed as to the basis for that difference of opinion.

Apparently, he and his lawyer believed that although Mrs. Childs’s Power of Attorney says decisions require the agreement of a majority of attorney’s if they have and control Mom all they needs was to inform a majority of attorneys – then do as they wished.

That was they position they too regarding Mrs Childs property.

Posted in Fiduciary Duty, Legal issues, Power of Attorney | Leave a comment

Questionable Care

Posted on June 20, 2017 by dignifiedcare

About April 28, 2014 Mrs. C’s dream of living out her life at her home ended as one son removed her to his house and the other defended this action. He stated it was her desire but refused to allow me to meet with Mom to confirm that this was the case.

She entered an environment of despicable care and forced isolation. The following is copied from a letter sent to Section 3 and the PGT. It restated information that had been provided in affiavits in their possession for months. At no point did either investigate any of these issues.

  • A’s laywer’s April 16/2015 letter that Andrew left Mrs. C’s in her excrement
  • The Bayshore Home Health notes that suggest this happened repeatedly
  • The pervasive isolation.
    •     Calls for children and joint attorneys under the PoA limited to 12-1 Sunday.
    •     M. allowing just a single non-Sunday call after Mom’s March 23 fall
    •     Restrictions on Mrs. C’s leaving A’s property
    •     The restrictions and frequent cancellation of visits, even those with lawyers consent
    •     The lack of contact or phone calls permitted from Mrs. C’s friends and neighbors
  • The lack of visits to the doctor for 7 months between April 28 and Nov 26 when incontinence and vomiting had been reported for months.
  • The doctors office notes stating Mrs. C’s “hit A. with a stick” and says to doctor “I don’t have a home” which suggest neither happiness and safety.
  • Bed-sores
  • The recordings of Mrs C’s cries for help from October to March supplied in transcript and recording form
  • Mrs. C’s recorded statement that A. was a Walloper
  • Mrs C’s asking me if she could use the washroom as if permission was required
  • C. C’s observation of Mrs. C’s recoiling when a friend reached for her

Everyone also had access to reports from Personal Service workers that visited with Mrs. Childs. They state

  • “(Mrs. C) is normally in bed when I arrive. She is fully clothed, no nightgown or pajamas”.
  • “(Mrs. C) only changes clothes when she’s on her tri-weekly care”
  • “(Mrs. C) had no brief on as she removed it and would not put them on … but I did not have any issue when I dressed her and included one”
  • “I have asked that (Mrs. C) be given back her bras as she remarked on Monday that not wearing one was making her uncomfortable”
  • “Son states only way to avoid her throwing up is not to feed her before a shower. I explained that … she tells me she is hungry and they would not give her breakfast”
  • “She has repeated several times on my visits ‘thank god a human, I hate those people’

None of this conforms to the duties of fiduciaries, meets the requirement of the Substitute Decision Act, or conforms to Mrs. C’s Power of Attorney.  And then there’s Mrs. C’s statements to numerous people that she had been struck by Andrew. This was relayed to the court via sworn affadavit.

Neither Section 3 or the PGT thought it that was worth speaking to Mrs. Childs about this – in fact both supported a motion that the material be struck from evidence when considering who should be Mrs. Childs guardian.

And through it all A. and M. (a university professor) through their counsel stated:

“At the present time your mother is receiving excellent care in a suitable environment”

The evidence suggests that this wasn’t the case – something the Public Guardian and Mom’s court-appointed lawyer could have investigated – but never did.

Posted in Care, Elder Abuse, Fiduciary Duty, Public Guardian, Section 3 | 1 Comment

Removing Property

Posted on June 20, 2017 by dignifiedcare

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.

 

Posted in Fiduciary Duty, Legal issues, Power of Attorney, Section 3 | 1 Comment

Competent Care

Posted on June 20, 2017 by dignifiedcare

Dementia is a difficult disease – especially in the early years.

First, it is imperceptible but gradually you are aware that your memory which underpins your reason and judgment, are going. And underneath it all is the recognition of loss of your adult autonomy and concerns about having to move from the security of your home and community. It is little wonder that the early stages are characterized  by fear, anger and confusion.

It was into this that Caroline stepped. First with frequent and increasingly lengthy visits assisting Mom:

  • transition pensions etc into Mom’s name
  • instituting direct deposit and automatic payment to reduce financial risk
  • attending numerous medical reviews
  • doing annual income tax filings
  • providing companionship and advice

When Caroline wasn’t there she called frequently. The information gleaned from these calls was shared with everyone, as none of us brothers called frequently. It was through the calls and visits we learned of the vast increase in fund raising calls Mom received, and shortly thereafter the her increasing addiction to sweepstakes and their increasing interest in her. (she was spending 300/wk on “entry fees” and receiving over 100 solicitations/mth)

Add to this that Mom’s weight was dropping precipitously as she no longer trusted herself to use the stove or microwave. Mom needed help. With everyone’s consent I arranged and paid for the SMILE service to assist Mom. Years later Andrew and Michael refused to reimburse those expenses. The Judge restricted repayment to 3 years which left me out of pocket for helping Mom.

Caroline’s concern rose and she talked with Mom, and with us brothers. All supported her move to care for Mom.

Caroline had initially asked for help covering her house expenses. That was agreed to. Within a month of Caroline being with Mom I saw such an improvement in Mom that I suggested we make this care permanent by paying Caroline as she was not able to work.

Michael agreed but did nothing. And through it all Caroline provided care – under which Mom benefited – which was our fiduciary duty.

After 2 years and for months of no income and increasing acrimonious argument from Michael and no respite, despite repeated requests,  Caroline was forced to give up care.

Michael, and Section 3,  had the gall to characterize this as abandonment.

Posted in Fiduciary Duty, Judges, Law Reform, Power of Attorney, Uncategorized | Leave a comment

Property Guardians Duties

Posted on June 20, 2017 by dignifiedcare

The appointment of BMO as guardian does not meet the spirit of SDA 32(3) which requires:

(3) A guardian shall encourage the incapable person to participate, to the best of his or her abilities, in the guardian’s decisions about the property.

The appointment of BMO creates a guardian of property that has no contact with Mrs. Childs, and has shown no interest in contacting her in over a year and a half.

That said BMO has also shown very little interest in providing a plan UNTIL after they are appointed – at which time it would require a court hearing to remove them. They have suggested this is because they do not have sufficient information to complete a plan. Under the April 24 Order paragraph 4; Section 3 was given the authority to

“compel the production of financial records relating to Eileen Childs from any third party institution including but not limited to HSBC. SunLife, Nesbitt Burns, Canada Revenue Agency, and any utility or service provider for Eileen Childs home”

BMO could get any information it wanted from any party.

BMO has shown no interest in working with the guardian for care, despite that being necessary for Mom’s care, and anticipated by the Act (32[1].1&2) They have:

a. Come to the court for direction on matters that they should be able to resolve themselves or through conversation with the parties.
b. Characterized potential future renovations as immediate maintenance; while not addressing the immediate maintenance needs of the house.
c. Answered every question about how fees are applied or by quoting the fees document from which the questions arose.

They brought forward a motion that would allow Mrs. Childs property, ordered returned but kept by others, to remain with that party.  Their motion and the not complied with Order are mutually exclusive.

The non-complied with Order required the Michael to “deliver Eileen Childs from Andrew Childs home to Sand Lake … together with her belongings … ” . Andrew kept in his possession some of Mrs. Childs property. The motion BMO proposed stated that “personal property currently in the possession of other family members shall be preserved and retained” freed Michael from repercussions from not complying with April Order. Coincidentally Micheal is the party designated to approve BMO’s passing of Accounts.

The SDA 32(1) identifies the property guardian as a fiduciary with an obligation to exercise their duties with diligence, honesty, integrity “for the incapable person’s benefit”. There was a duty on both the interim manager and BMO to disclose the conflict between the Orders to you to ensure Mom’s best interest was protected. That did not happen.

The plan BMO filed with the court states they will “Retain valuables as long as Mrs. Childs can use/enjoy them.”

Neither BMO or Section 3 asked Mom if she gets enjoyment from the property that was not returned (SDA 32(1)), or whether its value is important to the incapable persons care as defined by the guardian of care (SDA 32.1.2).

Mrs. Childs has a Property Guardian who does not consult her and allows others to keep her property.

 

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