Tuesday, December 20, 2011

Temoin v. Martin

If you believe that a member of your family, or a friend, is no longer capable of managing himself or his affairs, you may apply to the Supreme Court of British Columbia to be appointed as a committee, or in other words a guardian, of the incapacitated person. To succeed, the Patients Property Act provides that you must have affidavits from two medical practitioners providing their opinions that the person you are seeking to have declared incapable is in fact incapable.

But what if the person you believe is incapable refusing to be examined by a physician? Can you apply to court for an order that he be examined?

Madam Justice Fisher considered this question in a decision last week, Temoin v. Martin, 2011 BCSC 1727.

Lynn Temoin was seeking an order declaring that her father, Llewellyn Martin, was incapable of managing his own affairs. There was evidence that he had memory loss, and she was concerned that his wife, Ms. Temoin’s step mother, was taking advantage of his weakened mental functioning to persuade him to change his will and estate plan to benefit his wife and her children. A psychiatrist examined Mr. Martin, and opined that Mr. Martin had mild dementia and that he did not have capacity to make a will. But the psychiatrist did not conduct an examination of his ability to manage his own affairs.

Mr. Martin declined to undergo examinations to determine his capacity to make his own financial decisions, and Ms. Temoin applied for an order that he be examined by two physicians.

The Patients Property Act has a provision in section 5 allowing the court to order someone to attend before a physician for an examination, but the Court of Appeal, in McNeal v Few, (1975) 63 BCLR 281 (CA), held that the court could only make an order under what is now section 5 for an examination if there was already affidavit evidence of incapacity from two physicians.

Ms. Temoin argued that there is a legislative gap in the Patients Property Act, and the Supreme Court of British Columbia had inherent jurisdiction, known as the parens patriae jurisdiction, to order an examination to protect a vulnerable person.

Madam Justice Fisher agreed that the Court has the jurisdiction to make an order that a person in respect of whom an application is made attend an examination with a physician. But it is a power that the Court should employ sparingly. She wrote at paragraph 63:

[63] There is no question that compelling a person to submit to a medical examination is intrusive to personal autonomy and any order doing so would have to respect the values of the Canadian Charter of Rights and Freedoms. It is an order that should be made in rare circumstances, where there is “proof of incompetence” and where there is a compelling need for protection. The need for protection may be based on evidence that the person is personally or financially vulnerable due to things such as dangerous or erratic behaviour or abuse by others. The exercise of parens patriae jurisdiction requires that any order made is in the best interests of the person requiring protection.

On the facts before her, Madam Justice Fisher declined to make an order that Mr. Martin be examined by two physicians. She found there was insufficient evidence of his capacity and vulnerability. She wrote:

[64] Re Eve [[1986] 2 SCR 388,] is not instructive about what “proof of incompetence” means. In my view, there must be evidence which establishes that the person who is the subject of the application is prima facie incompetent. For the purpose of ordering a medical examination, this will be something less than the court being satisfied that the person is incapable of managing himself or his affairs. There must be some medical evidence. There may also be evidence from family, caregivers and close friends, which may provide important insight into the condition of the individual and any need for protection. I agree with the comments of Vickers J. in [British Columbia (Public Trustee of) v Batiuk, (1996), 14 ETR (2d) 5] Batiuk #1 (at para. 35) that “proper assessments are multi-disciplinary in nature and they will include the observations of persons close to the individual concerned.” This is consistent with the commentary in G. B. Robertson, Mental Disability and the Law in Canada, 2nd. Ed. at 27.

[65] In this case, I am not satisfied that the evidence is sufficient to establish that Mr. Martin is prima facie incompetent or that he is in need of protection. There is evidence that Mr. Martin has memory problems and some cognitive deficits. However, there is little evidence that he is incapable of managing his affairs, and there is conflicting evidence on his ability to make financial decisions. There is no evidence that Mrs. Martin has taken advantage of her husband in any way that requires this Court’s protection.
[Since I wrote this post, the British Columbia Court of Appeal has upheld Madam Justice Fisher's decision. You can read my post on the Court of Appeal decision here.]

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