I heard a story the other day on the Canadian Broadcasting Corporation airing complaints about the Public Guardian and Trustee of British Columbia. I heard the story on radio and television. I have since found it on the CBC website here.
Some of the criticisms were directed at the Public Guardian and Trustee’s handling of allegations of financial abuse, and of the Public Guardian and Trustee’s powers. These powers include the power to become appointed as a guardian of a mentally incapable person, even if that person has already appointed an attorney under a power of attorney.
I do not know anything about the specific cases referred to in the CBC’s story, and my comments are not directed at those cases.
But there is another perspective. I say this despite the frustrations I sometimes feel in dealing with the Public Guardian and Trustee’s office (or with many other large bureaucracies).
I will illustrate by making up a fictional case, but it is based on a variety of circumstances that I have come across in my law practice.
Steve is concerned about his aunt, who is 95, and lives alone. She is a widow, with no children. In the last three years, Steve has noticed that she has memory problems. Steve is close to his aunt. She remembers him, but she can’t seem to remember his children’s names when they visit her.
Steve recently learned that his aunt gave her niece (Steve’s cousin) a power of attorney, and transferred her house into a joint tenancy with the niece about six months ago. His cousin has been doing some of his aunt’s banking for her.
Steve’s aunt had not been particularly close with her niece, until about a year ago, when her niece started to visit her aunt several times a week. The niece recently bought a Porsche. Steve does not know where his cousin got the money to buy a Porsche, but he does not believe that his cousin has substantial wealth.
Steve suspects, but cannot prove, that his cousin is taking financial advantage of their aunt. He does not have a power of attorney for her.
Steve goes to a lawyer for advice.
Even if Steve were inclined to sue his cousin, he cannot do so. He has no authority to act on his aunt’s behalf. In British Columbia, there is a legal presumption that Steve’s aunt has capacity to make her own decisions, and only she can sue.
Nor does Steve have any real way of investigating what has happened. He has no right to review his aunt’s bank accounts, or insist that his cousin provide him with an accounting.
If Steve wants authority to investigate or sue on behalf of his aunt, he could apply to the Supreme Court of British Columbia to have his aunt declared incapable of managing his affairs, and for him to be appointed as her committee (or adult guardian). He would need affidavit evidence from two doctors that his aunt is incapable. The application would cost thousands of dollars, and likely take at least a couple of months. His cousin may contest his appointment. If appointed, Steve would have the significant responsibilities of managing his aunt’s finances.
Alternatively, Steve could contact the Public Guardian and Trustee’s office and ask for an investigation.
The Public Guardian and Trustee has the powers to investigate, and if there is evidence of abuse, to have Steve’s aunt’s bank accounts and other assets temporarily frozen to prevent further abuse.
In the circumstances described above, the Public Guardian and Trustee’s office might find that Steve’s aunt is still capable of making her own decisions, and that Steve’s cousin has done nothing wrong. Steve’s aunt’s memory loss may be minimal, and her functioning otherwise good. Steve’s aunt might have transferred the house into a joint tenancy knowing full well what she was doing, as part of her estate planning (although it is probably not estate planning that I would recommend). Steve’s cousin may be using the power of attorney solely for the purpose of helping her aunt. His cousin may have had other funds to buy the Porsche. In these circumstances, the Public Guardian and Trustee would need not do anything more.
But if Steve’s aunt were not capable of managing her own affairs, and if a director of a mental health facility or psychiatric unit signs a certificate that his aunt is incapable, then the Public Guardian and Trustee could be appointed as her guardian.
The Public Guardian and Trustee could then sue Steve’s cousin for the return of the title of Steve’s aunt’s house back into her own name. If Steve’s cousin received money from their aunt, the Public Guardian and Trustee could also sue for that money. It would ultimately be up to the court (not the Public Guardian and Trustee) to decide whether Steve’s cousin is entitled to keep her interest in the house and any funds she received after a trial.
I stress that I am not commenting on the specific cases referred to in the CBC story. Nor am I suggesting that the current legislation in British Columbia does not need reform. It does. In fact the Legislative Assembly has passed new legislation, but the government has not brought the new legislation into effect.
But I do think it is necessary for the Public Guardian and Trustee to have sufficient powers to investigate, and where necessary to take steps to remedy, allegations of financial abuse.
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