Thursday, February 01, 2007

Adult Guardianship Disputes: Re Grav

It’s sad when children end up in court arguing about their parent. It is sad when they fight about a deceased parent’s estate. But it is sadder still when the dispute is about which child will look after their ailing parent. The children may have the best of intentions, but the parent is pulled this way and that. Nobody wins.

Even if British Columbia had modern adult guardianship legislation, courts can never replace family harmony, and children who are sensitive to their parents’ needs. But British Columbia’s Patients Property Act, RSBC 1996, c. 339, is about as precise an instrument for assisting adults with diminishing capacity as a chain saw is for brain surgery.

The recent Supreme Court of British Columbia case of Re Grav, 2007 BCSC 123, illustrates these points well.

Fritz Grav lived in Ontario from when he immigrated to Canada in 1956 until February 2005. He and his wife moved into a retirement home in November 2004 in Kingston, Ontario. Their daughter Esther lived near them.

Fritz Grav’s wife died in February 2005. A couple of weeks later, his son Eberhard took him out of the retirement home to live with him in Victoria, B.C. Witnesses said that they heard Fritz say repeatedly that he did not want to go to Victoria. One witness said that there were tears in Fritz’s eyes the day his son took him out of the retirement home.

In December 2005, Fritz Grav was back in Ontario. He met with his lawyer, and told the lawyer that he wanted to be in Ontario with his daughter.

In March 2006, Eberhard Grav again moved his father back to British Columbia. Fritz Grav’s son then brought an application under the Patients Property Act, seeking an order declaring his father incapable of managing himself or his affairs. Fritz Grav’s son also applied to be appointed Fritz Grav’s committee (the term used in B.C. for a guardian of an adult).

Fritz Grav’s daughter opposed her brother’s application, arguing that their father had appointed her his attorney and substitute decision maker. She considered the court application unnecessary.

In fact, Fritz Grav had made four different powers of attorney. He made one in 2004 in Ontario appointing both of his children as his attorneys. He made another in March 2005 in British Columbia appointing his son. He then made one in Ontario in January 2006 appointing his daughter. Finally, he made a power of attorney in March 2006 in British Columbia appointing his son as his attorney. Do you see the pattern?

Mr. Justice Metzger granted an order declaring Fritz Grav incapable of managing him self or his affairs. The court relied on the affidavits of two doctors, both of who were of the opinion of that Fritz Grav was no longer capable.

When I read Mr. Justice Metzger’s decision, I get the sense that he has some concern about the legislation and the sparseness of the evidence required for the court to make an order taking away someone’s right to make his or her own decisions. For example, he notes that doctors’ give Fritz Grav’s test scores, but do not explain what the scores mean.

Mr. Justice Metzger writes at paragraphs 22 through 26,

[23] In his affidavit dated April 13, 2006, Dr. Robertson states that Fritz is incapable of managing his affairs and himself. I note that the affidavits of the two doctors are identical containing the same clerical errors. Dr. Robertson does not set out what weight he attaches to the test scores, his interviews and information provided to him. It is puzzling that he concludes on March 8, 2006 that Fritz is incapable with a 19/30 MMSE test score and capable with an 18/30 test score on April 28, 2005.

[24] The PPA [Patients Property Act] does not require doctors to have any additional qualifications or experience other than being medical practitioners licensed to practice medicine in British Columbia and current members in the British Columbia College of Physicians and Surgeons (see Johnston v. Johnston, 2003 BCSC 110, at paras. 7-9).

[25] The PPA does not provide the court with any guidance as to what factors suggest a person is incapable of personal care. The Act leaves that decision to two medical practitioners that must, by affidavit, determine whether an individual is incapable of managing himself.

[26] Both doctors have met the Act’s requirements. In both of their affidavits and medical reports, the doctors have concluded Fritz is incapable of managing himself and his affairs.
I don’t read Mr. Justice Metzger’s comments in these paragraphs as a criticism of the doctors involved in the case, but rather of the fact that the legislation provides the court with no criteria other than the views of two doctors. My experience with these applications is that the court is often asked to make declarations that someone is incapable on the basis of relatively sparse affidavits from a two doctors.

Having found Fritz Grav incapable of managing himself or his affairs, Mr. Justice Metzger’s then appointed Fritz Grav’s daughter as the committee. The court found that she “acted in her father’s best interests and is most likely to continue to do so.” In contrast Fritz Grav’s son had acted against his wishes in moving him to Victoria.

No comments: