Friday, July 10, 2009

CBC Story on the B.C. Public Guardian and Trustee

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.


Anonymous said...

The PGT is not monitored closely enough by an independent body. Its case managers do not have case workers despite working for a pecentage of 'clientts'' trusts. In some cases they operate unlitaerally without consulting family members. There is some non-transperency about whether they are a department of the provincial government or a for profit corporation. Although taking a share of 'clients'' estate they do not offer financial records to concerned family members. They consider out of country family members as irrelevant even though they themselves conduct all their business by telephone and email. Unlike a bank, lawyer or accountant they behave as if if they arrange payments for 'client' needs that no family members be involved in decision making. In at least my family situation they did a poor job of choosing paid companions. The PGT is an inefficient, autocratic, out of control agency that must be reformed or replaced with a more humane and just organization. The gov't of BC finangled a new corporate structure of the PGT to eliminate civil suits of abuse of power by this frankenstein of state and corporate power over vulnerable individuals. In the case of my mother who has Alzheimer's the 'cure has been worse than the disease'.

Anonymous said...

I am currently dealing with the PGT, who have committeeship over my elderly mother. They are the most unprofessional, inefficient, out of control agency that abuses their power over the elderly. I am fed up with them and ready to expose them to the media so the general public are aware who they really are. I also agree with the previous comment that the "cure has been worse than the disease." I would like to know what they are doing with my mother's money? They don't tell the family. Everything is done in secret.

Anonymous said...

Hello, I myself am dealing with the PGT and compleatly agree that they are unfair,they intiminidate families and scare them so the family will be afraid to get involved. They took they POA away from me without any contact or even trying to find out what the problem was. We had severe problems with a residential home that my mother was in and when we started complaining and they refused to do anything about it. We stopped payments to the home. Then without discussing what could be resolved the home immediately called the PGT and said I was abusing her money. My mom and I were very close and I took care of her for over 25 yrs and never had any problems until she was placed in care. She had hated the care home and did not like what they were doing to her and the care she was receiving and when mom and I spoke up the got worried and then they turned on us. And did this my mom was scarred didn't understand why they were doing this to her. She knew I nerver did anything ever to harm her and they put so many bad things in her head.and mom new what was going on she worked in a nursing home for 25 yrs. now she has passed away and we are still fighting with them. And they will not answer or return any of our calls??? What are they afraid of?? Do they know they were in the wrong? And what can I do to get through to theses people they are the most mean and rude people ever. Just cause they have power!!! Is there some one that can help me with this?

Anonymous said...

My family too has had a traumatic experience with the PGT. They have been secretive and heavy-handed and they have made mistakes that are very costly in human terms.