SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 03-89/13
DATE: 20140403

ESTATES LIST

RE: The Public Guardian and Trustee, Applicant

- v. -

Peiyu Gan and Yunhong He, Respondents

BEFORE: Mr. Justice Stinson

COUNSEL: Phillippa Geddie, for the Applicant
Yunghong He, acting in person
No one on behalf of Peiyu Gan

HEARD: March 28, 2014

ENDORSEMENT

[1] This application returned before me on March 28, 2014, following previous appearances before me on March 14 and March 20, 2014. This endorsement contains my final disposition of the matter.

Background

[2] In this application, the Public Guardian and Trustee (“PGT”) seeks an order appointing the PGT as permanent guardian of the person of the respondent Peiyu Gan (“Ms. Gan”) under s. 55 of the Substitute Decisions Act, 1992, S.O. 1992, c.30 (“SDA”). It is opposed by the respondent Yunghong He (“Ms. He”), Ms. Gan’s daughter, who seeks instead to have herself appointed as her mother’s guardian of the person.

[3] Ms. Gan has been in long term care since she was rendered incapacitated and incapable of self-care by a stroke in August 2009. She is non-verbal, non-mobile and completely dependent on others for all activities of daily living. Prior to the events that gave rise to these proceedings, Ms. He acted as her mother’s informal substitute decision maker.

[4] Ms. Gan’s care needs are further complicated due to several other serious medical conditions. She suffers from virtually complete aphasia. She has difficult to control diabetes. She has cerebrovascular disease and coronary artery disease. She is currently being co-managed by an endocrinologist and receives large doses of insulin. She also has a G-tube through which she receives nutrition and medication. She has ten standing prescriptions and seven prescriptions which are classified as PRN or “to be administered as needed”, many of which require a clinical assessment by healthcare provider.

Procedural History

[5] Ms. Gan has resided at several long term care homes since her discharge from hospital following her stroke. She has also had at least one further hospital admission. It is fair to say that Ms. He has become increasingly unhappy regarding the care her mother has received in these facilities. (I make no comment or finding whether her unhappiness is warranted nor any finding that there was anything deficient or substandard regarding the level of care provided. These are not issues that are germane to the questions before me. Suffice to say that, despite complaints made by Ms. He, to date the officials charged with reviewing such matters have found no substance to them.)

[6] The Office of the PGT first came to be involved with Ms. Gan and Ms. He in February 2013, when that office was contacted by the long term care facility (“LTCF”) at which Ms. Gan was then residing, expressing concerns about Ms. He interfering with the care being provided to Ms. Gan. The LCTF went so far as to inform the PGT that Ms. Gan might be at risk due to Ms. He’s actions. (Again, I express no comment on the details of the issues raised by the LTCF, but mention it only so that the history may be complete.) As a result of that contact, the PGT began to monitor the situation, but took no immediate action. Ultimately, in May 2013, Ms. He’s interactions with the medical professionals and staff at the LTCF in relation to their efforts to provide care for Ms. Gan led the LTCF to ban Ms. He from entering the facility; this was said to be due to alleged concerns for the safety of Ms. Gan and other residents under its care arising from Ms. He’s conduct. (Again, I express no comment on the underlying reasons for this action by the LTCF.)

[7] As she grew dissatisfied with her mother’s care at the LCTF, Ms. He sought to have her mother discharged to her care so that she could move her into her Toronto condominium apartment and look after her there. In March and April 2013, The Toronto Centre Community Care Access Centre (“CCAC”) – the provincial agency that serves as the first point of contact for public access to government-funded home care, community services and long-term care homes – evaluated Ms. Gan’s care needs. CCAC came to the opinion that her treatment needs could not be met if she were discharged to Ms. He’s condominium. Ms. He complained to the Long Term Care Action Line about CCAC, and a mediator attempted without success to solve the situation. Meanwhile, CCAC maintained that it was not in agreement with the notion that Ms. Gan be discharged into her daughter’s care.

[8] On July 29, 2013, Ms. He arranged for Ms. Gan to be removed from the LTCF to go to an outside medical appointment, accompanied by an outside escort. After the appointment, instead of returning her to the LCTF, Ms. He arranged for Ms. Gan to be brought to her condominium, without the knowledge or approval of either the LTCF or CCAC. Late that evening, the LCTF determined what had occurred, and where Ms. Gan had been taken. The next day, representatives of the LTCF attended at the condominium and were told by Ms. Gan’s husband that she had not received any insulin that day. They became concerned regarding Ms. Gan’s health, and the police became involved. As a result, Ms. Gan was removed from the condominium and taken to hospital; she was subsequently discharged back to the LCTF.

[9] In the wake of the foregoing sequence of events, the PGT commenced this application and brought an urgent motion for interim relief. By order of Frank J. dated August 9, 2013, the PGT was appointed the temporary guardian of the person of Ms. Gan. Since that time she has continued to reside and be cared for in the LTCF.

[10] The order of Frank J. was extended by order of Greer J. dated November 7, 2013 for the period up to January 17, 2014. The order was extended a further 90 days by way of the endorsement of Wilton-Siegel J. dated January 10, 2014, which also adjourned the matter to a further hearing on March 14, 2014. The purpose of the latter adjournment was to permit Ms. He an opportunity to address certain issues identified by Wilton-Siegel J. Those issues arose from Ms. He’s proposal that, instead of the PGT, she be appointed as her mother’s guardian and that her mother be moved out of the LTCF, and come to live with her in her condominium and be cared for there. In his endorsement, Wilton-Siegel J. requested CCAC to prepare a supplementary report assessing the situation and Ms. He`s proposed plans. CCAC proceeded to do so.

[11] The parties appeared before me on March 14, 2014. Despite the prior adjournments and the opportunities provided to her, and despite various efforts by her, it became apparent to me that Ms. He had not prepared the form of Guardianship Plan or Management Plan normally required under the SDA for the appointment of a guardian of the person or property for an incapable person. She had also not fully addressed some of the concerns that had been identified by CCAC in the supplementary report it prepared at the request of Wilton-Siegel J.

[12] I therefore adjourned the matter to return before me on March 20, 2014 to permit Ms. He another opportunity to prepare the requisite material. I specifically invited her to approach the matter on the basis that she try to demonstrate, at least on a trial basis, that she is indeed in a position to provide the required level of care for her mother at home. I also invited counsel for the PGT to endeavor to identify for Ms. He (both directly, and by way of communication with CCAC) specific deficiencies with her proposals so that she might address them.

[13] Ms. He and counsel for the PGT returned before me on March 20. In the meantime, Ms. He had prepared (in proper format, more or less) a Guardianship Plan and a Management Plan, which she supplemented with a document entitled a Care Plan. Not all of this material had been seen by CCAC prior to the attendance on March 20, and no-one from or on behalf of CCAC appeared on that occasion – nor were they required or expected to. Copies of emails from CCAC regarding certain aspects of Ms. He’s plans were filed with me, although no affidavit was filed from a CCAC representative.

[14] At the appearance on March 20 I became concerned that I did not have sufficient information from CCAC regarding its ability to assist Ms. He in making satisfactory arrangements for the safe and proper care of her mother at home. As well, given the concerns expressed by CCAC in the past regarding the adequacy of the proposed plans of Ms. He for providing care for her mother at home, I directed counsel for the PGT to facilitate a meeting among representatives of CCAC, the Office of the PGT and Ms. He and her proposed caregivers, so that all relevant issues could be raised and addressed. On this basis I adjourned the matter to return before me on March 28.

[15] Between March 20 and March 28, the meeting directed by me took place and other communications were exchanged between Ms. He, the PGT and CCAC regarding various issues. At the hearing on March 28, I received additional material from Ms. He and from the PGT describing the efforts made to arrive at a solution to the previously-identified problems. As well, I heard oral testimony from a representative of CCAC who is a “client service manager” who oversees care coordinators who assist clients in arranging care in the community for high-risk, frail seniors. That testimony was most helpful to me in understanding and assessing the situation.

Analysis

[16] Unfortunately, prior to her stroke, Ms. Gan had not expressly provided for her care in the event of incapacity by executing a power of attorney for personal care. Although she purportedly signed such a document in late 2010, I have serious doubts regarding its effectiveness, given her condition at the time. In any event, Ms. He has not advanced her case before me on the basis of the validity of that document.

[17] It is undisputed that Ms. Gan is incapable of personal care within the meaning of s. 45 of the SDA, and as a result someone needs to make decisions on her behalf. A guardian of the person must be appointed to fulfill that function. The events described above have prompted the PGT to apply to be appointed as guardian of her person. Pursuant to s. 57(2.2) of the SDA, however, the PGT is not to be appointed as a guardian of the person unless there is no other suitable person who is available and willing to be appointed. Logically, and consistent with s. 57(3)(c), Ms. He would be the proper choice in view of the closeness of the relationship between her and her mother. The real issue on this application is whether, based on the material before the court and in particular based on Ms. He’s plans for her mother’s care, she is “suitable” to be appointed, consistent with the intent of s, 57(2.2) of the SDA. That issue turns on whether she has presented to the court a suitable and viable Guardianship Plan regarding her mother’s care. If no suitable and viable plan is presented, it would not be appropriate to vest an applicant with such an important and serious responsibility.

[18] Ms. He has been seeking to have the court appoint her as guardian of the person for her mother since at least October 2013. There have been numerous court appearances in which she has been given the opportunity to present a suitable application, supported by appropriate evidence, that would warrant the court making such an order in her favour. Indeed, the multiple appearances before me were directed at enabling Ms. He to submit a Guardianship Plan that would satisfy the court that she would be able to provide the care her mother requires, in light of Ms. Gans various and significant medical issues. Subsequent to the March 28 hearing, Ms. He attempted to file additional material, by sending it via email to my assistant. From my brief review of that material, much of it is repetitive and duplicative of material previously filed by her, as well as argumentative. I am satisfied that, over the past months and the multiple appearances in court, Ms. He has been given an ample opportunity to present her case and her proposals for her mothers care. I therefore decline to receive this additional material.

[19] The evidence before me establishes that the PGT, through the involvement of CCAC, has conducted a careful, thorough and complete assessment of Ms. Gan’s care needs. A similarly careful, thorough and detailed evaluation has been made of Ms. He’s proposed care plan, in relation to its adequacy and sustainability.

[20] In relation to the issue of adequacy, the major concern identified by CCAC is whether Ms. Gan would receive sufficient and satisfactory medical care were she to leave the LTCF. At that location, 24 hour monitoring and nursing support is available. Nurses in attendance are in a position to assess her medical condition on an ongoing basis and, exercising their clinical judgment, determine what her medical needs may be. This is especially significant given Ms. Gan’s complex health issues and her inability to communicate. As well, a physician is available to attend at her bedside, without need for her to leave the facility.

[21] In the proposed homecare setting, virtually all of the care and observation would be provided by Ms. He (who has a full-time job) and one other proposed caregiver. Although CCAC would be able to arrange for training for the caregivers and for visits by a nurse, that training could only address Ms. Gan’s basic medical needs such as her G-tube and testing her insulin requirements. The same 24 hour nursing support and ongoing professional assessment of Ms. Gan’s medical needs that is provided at the LTCF would not be available. As well, although a nurse practitioner could arrange to attend at the apartment, in the event Ms. Gan requires an assessment or checkup by a physician, it would be necessary for her to be transported by ambulance to the doctor’s office since her current condition is such that transport via WheelTrans is not a safe alternative. In the words of the CCAC client service manager, Ms. Gan “has care needs beyond what CCAC can provide” in the home setting. (In fairness to Ms. He, I note that she has taken various steps to equip her apartment with a view to providing care for her mother, including installing a hospital bed and related other requirements. The CCAC concerns relate primarily to the medical needs of Ms. Gan.)

[22] In relation to the sustainability of the proposed care plan put forth by Ms. He, as originally constituted the caregivers consisted of one volunteer (who would be responsible for Ms. Gan between 8 AM and 10 PM five days per week), and Ms. He for the remainder of the time. Ms. He identified a number of friends and supporters who, she indicated, were willing to assist in her mother’s care, although limited information was provided regarding their capability or commitment to provide the required support. At the last minute, Ms. He filed a supplementary affidavit indicating that she had obtained assurances from another friend who is trained as a PSW, to act as a backup caregiver where necessary.

[23] From the perspective of CCAC, and the PGT, the ability of Ms. He to continue with providing the required level of care as proposed, is questionable. There is no challenge to Ms. He’s commitment, dedication or good intentions in this regard. Rather, the concern is founded on the reality that Ms. Gan’s care needs are substantial, requiring among other things that she be repositioned every two hours, 24 hours per day. She requires complete care as she is unable to do anything for herself. Simply stated, the physical and emotional toll that providing such care would exact is likely to exhaust the caregivers before too long.

[24] Another consideration relevant to the issue of sustainability is the circumstance in which Ms. Gan would be left in the event the home care plan proposed by Ms. He proves unworkable. The current LTCF has indicated a willingness to keep Ms. Gan’s bed available for no more than 21 days. After that time, the bed would be filled and there would be no place immediately available for Ms. Gan to return to care, if necessary. She remains high on the waiting list for the Mon Sheong long-term care home in central Toronto, which is considered more culturally appropriate and desirable, but there is no certainty as to when a bed might be available for her there. Ms. He has indicated that if her mother is allowed to move home with her, she would likely turn down a bed offer from Mon Sheong were one to be forthcoming. In that event, Ms. Gan would lose her priority on that waiting list and return to the bottom of the list. Thus there is a concern about the viability of Ms. He’s back-up plan, too.

[25] In his report dated January 26, 2014, the physician advisor to CCAC listed a number of concerns relating to the medical issues facing Ms. Gan. It is apparent, based on that assessment, that Ms. Gans medical condition is complex and her current stability is due to intensive clinical and supportive care by healthcare professionals at the LTCF. The removal of Ms. Gann from long-term care would put her at risk of skin breakdowns and infections, including pneumonia, skin surface and urinary tract infections. As the CCAC representative summarized in her testimony, Ms. Gan has care needs that are beyond what CCAC can provide in the home setting.

[26] I am conscious of the comments by the physician advisor that “the benefit of being in the constant presence of family and friends cannot be fully estimated.” Ideally, Ms. Gan would be able to live at home, with her daughter and others present to assist in her care. Such an arrangement would also enable Ms. He to practice Falun Gong together with her mother, as they did in the past. Important and desirable as that approach may be, the dilemma in the present case is the sufficiency of the proposed arrangements to meet Ms. Gan’s care needs. Despite goodwill, good intentions and love, Ms. Gan’s healthcare must be adequately, reliably and sustainably provided for.

Decision

[27] As matters stand, by reason of her past conduct, Ms. He has been excluded from the LTCF in which her mother currently resides. It is not my function in this proceeding to review or alter that decision. Ms. He is understandably very unhappy and distressed that she has been unable to visit her mother there, and she continues to be dissatisfied with her mother’s care and her exclusion from the decision-making process. In her Guardianship Plan, Ms. He proposes to remove her mother from the LTCF, and to care for her at home instead. It is self-evident that such a move would overcome Ms. He`s concerns about her inability to visit her mother at the LTCF. The case comes down to whether the potential benefits and risks associated with making that change outweigh the security and reliability of the care that Ms. Gan is currently receiving.

[28] I am not prepared to approve Ms. He’s application based on her proposed Guardianship Plan. I am not satisfied that it is either adequate or sustainable. Dealing first with the adequacy of the plan, I have discussed earlier the concerns of CCAC. I believe those concerns are well founded. In particular, I share the concern that the plan proposed by Ms. He will not provide sufficient medical care for Ms. Gan. Simply put, I am not satisfied that it is adequate to address her highly complex medical situation. In my view, volunteer caregivers in a home setting are not an adequate substitute for the professionally trained staff, available nursing care and medical attention that are currently provided 24/7 on an “as required” basis in the LTCF. Desirable (and potentially beneficial) as living at home with her daughter may be, in the circumstances I am not prepared to put Ms. Gan at risk, which I find she would be if removed from the LTCF.

[29] The second reason for my concern is the sustainability of Ms. He’s care plan. Despite her good intentions, I am not persuaded that her proposed plan is sustainable, given the demands it will place on her and the other principal caregiver. The risk to Ms. Gan and the potential inability to find another long-term care placement for her are other factors that weigh against even a temporary return to Ms. He’s condominium apartment.

[30] For the above reasons, I am not prepared to approve Ms. He’s Guardianship Plan. As a consequence, I find that there is no other suitable person who is available and willing to be appointed, apart from the PGT. I therefore make the appointment of the PGT as guardian of the person of Ms. Gan permanent.

[31] This is a most unhappy case, involving as it does the well-intentioned efforts of a daughter to try to provide care for her ailing mother at home. Sadly, the care her mother requires cannot be adequately provided at home, with the result that the daughter’s wishes cannot be fulfilled. In the circumstances, the court has no other option but to appoint the PGT as the mother’s guardian, to ensure that the mother will continue to receive the medical care she requires. I am sure that the PGT will be mindful of its obligations under s. 66(6) and s. 66(7) of the SDA, and will seek to facilitate regular personal contact between Ms. He and her mother, and will also consult with her from time to time regarding her mother’s care.

Stinson J.

Date: April 3, 2014