The Right Person for the Job
Introduction
It is now common for people to become unable to manage their financial affairs
as well as their personal affairs. Whether from age, or medical disorder or other
factor(s), it happens often in our Province. Many readers know that there is today
insufficient space in care facilities for all the persons who cannot manage themselves.
Generally, our Provincial Government seeks to have persons remain in their homes
as they age, unless the level of care needed is too high.
There are two main types of documents people can make as they age, in order to
ensure they can be financially managed and personally managed. In particular,
there is the Power of Attorney document, in which the (adult) person appoints an
individual or organization (such as the Public Guardian & Trustee) to manage their
financial affairs.
In addition, there is the Representation Agreement, in which the person appoints
an individual (typically, though organizations, again such as the Public Guardian &
Trustee, can occasionally be appointed as well).
The cost of these documents is generally not overly expensive. If, however, no
documents are made, and the person becomes unable to manage their financial affairs
or their person, a Court Order, known as Committeeship, will be required. These tend
to be fairly expensive, mainly due to the procedure that is followed and expenses
incurred along the way.
There are times when a Committeeship application is opposed. A person (such as a
child of the Adult) may apply but a sibling or someone else may oppose, normally
where the other person may feel that the applicant ought not to be the Committee.
In such a situation, the Court will be asked to decide who is the most appropriate
person to act.
Last month, reasons for judgment were released in a case called Re Kierans, which
was a disputed application for Committeeship. The Patient is a 65 year old disabled
Adult. The applicant is a Sister. The opposing party is another Sister.
Facts
The applicant lives in Ontario. The opposing party lives in the lower mainland. The
hearing was held in the Vancouver Courthouse.
There was no dispute that the patient, their brother, is unable to manage his financial
affairs and his personal affairs. He has been living in a community group home, for
over 30 years. The patient had no spouse and no children.
The “opposing” Sister is one of 5 siblings the patient has but is the only sibling who
resides in the lower mainland.
The patient’s assets are modest, amounting to just under $30,000, consisting of money
in a Bank account. His income is a disability income and his room and board at the
group home is paid by the Provincial Government.
The applicant Sister in Ontario has visited 5 times in the past 2 years. She is the
patient’s Godmother. The opposing Sister had not been in much contact between
2014 and 2021 for various reasons (including health) but she resumed contact
with the patient in 2021. She visited twice a week and took the patient on outings.
Meanwhile, the applicant contacted the patient weekly by Skype and made the
visits as well.
The applicant Sister had been appointed representative under a Representation
Agreement made in 2021 and, in September, 2022 she chose to end the visits by the
opposing Sister. The reason was that the opposing Sister caused the group home staff
considerable stress by 2022 and was also causing the patient considerable stress as
well. It proved very difficult by 2022 for the patient to spend time with the opposing
sister. As a result, the visits were terminated by the applicant, which prompted the
opposing Sister to launch an action.
Court’s decision
Our legislation is known as the Patients Property Act. The Act allows a Court to Order
that a person is incapable of managing their person and their financial affairs. The
Court, in deciding between applicants, must determine who will serve the patient’s
best interests.
The Court considers various factors, including whether other family members
agree on which person is best suited, whether the person appointed is the person
the patient chooses (if the patient is capable), whether the intending Committee will
provide love and support to the patient.
In this case, the Court Ordered that the applicant Sister, who lived in Ontario, was
best suited to be Committee. One factor the Court mentioned was that the patient was
under threat of being removed from the group home because the staff were unable
to cope with the visits from the opposing Sister. It appears that the opposing Sister,
over time, was in a poor relationship with the group home staff. It would have been
extremely difficult and disruptive to the patient if he had to leave the group home.
Conclusions
My opinion is that this case was properly decided. It was clear that the Court was
concerned with the potential trouble had the patient been moved from
his group home. The patient was cognitively impaired and it was
in his best interests that he remain in his group home, where he
had lived for over 30 years. Having to choose between competing
family members in such applications is difficult. However, the
Court properly focused on the patient’s best interests.