ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-52929
DATE: 2015/09/29
B E T W E E N:
Donna Lyn Corewyn
Lorna A. George, for the Applicant
Applicant
- and -
Williamina Ena McCulloch, and The Public Guardian and Trustee and William Millman McCulloch
John V. Kranjc, for the Respondent William Millman McCulloch
Respondents
No-one appearing for The Public Guardian and Trustee
HEARD at Hamilton, Ontario: September 10, 2015
The Honourable Justice P. R. Sweeny
ENDORSEMENT
Introduction
[1] The applicant, Donna Lyn Corewyn (“Donna”), seeks to be appointed guardian of the property and personal care for Williamina Ena McCulloch (“Ena”). The respondent William McCulloch (“Bill”) opposes the application. He is the attorney for property and personal care for Ena pursuant to continuing powers of attorney executed by Ena for both personal care and property on February 11, 1999.
The Parties
[2] Donna is the daughter of Ena. Bill is the husband of Ena. They have been married for over 32 years. Bill has three children from a prior marriage. Bill is Donna’s stepfather. Donna has a sister, Alison Grego (“Alison”), and had a brother who is now deceased. Ena is now 84 years of age and Bill is 87. Ena was diagnosed with Alzheimer Dementia in 2007. She now lives in a locked ward at St. Joseph’s Villa (“SJV”) in Hamilton. Bill is also a resident at SJV but they live on separate wards.
[3] Donna and Bill agree that Ena is a person incapable of managing her property and making personal care decisions. I am satisfied, based on the medical reports contained in the records, that this is the case and, accordingly, I am prepared to make the necessary findings under s.25(1) and s.58(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”).
[4] Donna seeks to be appointed guardian of property and personal care under s.22 and s.55 of the SDA.
Background
[5] The evidence is clear that since, at least, 2007, when Ena was diagnosed with Alzheimer Dementia, Donna has been actively involved in health and personal care decisions with respect to her mother. Donna has also provided assistance and care for Bill. Donna’s daughter Marissa regards Bill as her grandfather and she has been involved in ensuring that Bill and her grandmother receive appropriate care and support. There is no challenge to the assertion that Donna has looked after and provided assistance to Ena and Bill for many years. She accompanied her mother on her many visits to doctors. She was consulted with respect to healthcare decisions regarding Ena by physicians and other healthcare professionals. She was with her mother when a cancer diagnosis was made.
[6] Bill was not really engaged in his wife’s medical care. In his affidavit, he says it was not easy for him to travel to appointments. For whatever reason, the evidence shows that Bill was not actively participating in making healthcare decisions with respect to Ena. When making decisions about Ena, Donna would consult with Bill.
[7] The situation was working well for Ena and Bill until issues arose in the past year. In November 2014, Ena broke her pelvis. In the circumstances, the Amica Retirement Home, where they had been living since 2008, could not provide the appropriate level of care for Ena. Ena’s medical and supervision needs were simply too high. Donna arranged that Ena would go to SJV. Bill has had health challenges, and arrangements were made for Bill to go as well.
[8] An issue arose with respect to powers of attorney for Bill. The evidence is that Pat Ford from the Geriatric Department at St. Joseph’s Hospital encouraged Bill to prepare powers of attorney to facilitate decision-making. In the circumstances, Donna made arrangements for Bill to execute a power of attorney with a lawyer whom he had never previously met. It is acknowledged by Donna that the circumstances surrounding the execution of the powers of attorney were not ideal. The powers of attorney were executed in December 2014. Donna only acted on the power of attorney in paying a few bills which Bill had neglected to pay. In January 2015, Ena and Bill moved to SJV.
[9] In January, Bill had become suspicious of Donna’s motives. Bill consulted with a lawyer and with his daughter Sara and rescinded the powers of attorney granted to Donna, and executed new powers of attorney in favour of Sara. In January 2015, Donna made inquiries about joint investments held by Ena and Bill with Sovereign Wealth. Donna’s inquiries with respect to the investments were communicated by Sara to Bill as a request to change the designated beneficiaries on the instruments. This was not the case.
[10] Alison and Donna had made arrangements for a personal support worker (“PSW”) to visit with her mother on a daily basis. They had the support worker there for approximately 25 hours per week. The invoice was being sent to Bill. Sara spoke with the director of care for the PSW provider and unilaterally requested a reduction of the visits to two hours daily. This raised concerns with Donna and Alison.
[11] On March 28, 2015, Sara purported to make an arrangement with Donna that would see Ena and Bill divide their assets 50/50. Donna acknowledges that she had no right to make such an agreement, but out of concern for her mother she agreed. Within a few days of signing that agreement, Bill withdrew $75,000 from one of the joint accounts leaving only $19,000. In response, Donna took her mother to the bank and withdrew the $19,000. There was now a great degree of mistrust.
[12] This application was brought by Donna in June 2015.
[13] In response to the application, Bill says it is not necessary. He will provide PSWs that are necessary and if there is anything else that Donna wishes for her mother, she should let him know and he will consider it. There is no need for a management plan and a court order. He also says that he will look after the money as he has always done.
ANALYSIS
[14] The relevant provisions of the SDA are as follows:
- (1) A power of attorney for property is a continuing power of attorney if,
(a) it states that it is a continuing power of attorney; or
(b) it expresses the intention that the authority given may be exercised during the grantor’s incapacity to manage property.
- (1) A continuing power of attorney is terminated,
(a) when the attorney dies, becomes incapable of managing property or resigns, unless,
(i) another attorney is authorized to act under subsection 7 (5), or
(ii) the power of attorney provides for the substitution of another person and that person is able and willing to act;
(b) Repealed: 1996, c. 2, s. 8 (2).
(c) when the court appoints a guardian of property for the grantor under section 22;
(d) when the grantor executes a new continuing power of attorney, unless the grantor provides that there shall be multiple continuing powers of attorney;
- (1) The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.
(3) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,
(a) does not require the court to find the person to be incapable of managing property; and
(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.
- (5) Except in the case of an application that is being dealt with under section 77 (summary disposition), the court shall consider,
(a) whether the proposed guardian is the attorney under a continuing power of attorney;
(b) the incapable person’s current wishes, if they can be ascertained; and
(c) the closeness of the relationship of the applicant to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.
(1) An order appointing a guardian of property for a person shall include a finding that the person is incapable of managing property and that, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.
(1) A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.
(1.2) A guardian shall manage a person’s property in a manner consistent with decisions concerning the person’s personal care that are made by the person who has authority to make those decisions.
(1) A power of attorney for personal care is terminated,
(a) when the attorney dies, becomes incapable of personal care or resigns, unless,
(i) another attorney is authorized to act under subsection 46 (5), or
(ii) the power provides for the substitution of another person and that person is able and willing to act;
(b) when the court appoints a guardian for the grantor under section 55;
- (1) The court may, on any person’s application, appoint a guardian of the person for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.
(2) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,
(a) does not require the court to find the person to be incapable of personal care; and
(b) is less restrictive of the person’s decision -making rights than the appointment of a guardian.
- (1) An order appointing a guardian of the person shall include a finding that the person is incapable in respect of the functions referred to in section 45, or in respect of some of them, and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.
[15] I have considered the provisions of sections 22(3) and 55(2). In this case, I am satisfied that the need for decisions to be made for Ena for property and personal care cannot be met by an alternative course of action. It is necessary that a guardian be appointed for property and personal care.
[16] In Cates v. Forbes, [2003] O.J. No. 2154, Brennan J. stated:
I am of the view that the court has jurisdiction pursuant to the Substitute Decisions Act, S.O. 1992, c. 30, to order a change of substitute decision maker in the best interests of the person if a valid grant of a power of attorney no longer serves the person’s best interests.
[17] The issue for this case is whether the powers of attorney for property and personal care granted to Bill no longer serve Ena’s best interests.
[18] Somers J. in Glen v. Brennan, [2006] O.J. No. 79, stated:
The courts have generally taken the view that a written power of attorney executed by the donor at a time when he was apparently sound of mind (and there is nothing in the material to suggest otherwise) is simpler to deal with and gives the donee more flexibility in dealing on behalf of the donor. Also favouring a continuation of the appointment respects the wishes of the person who made the grant. Chief Justice Hickman of the Newfoundland Supreme Court Trial Division in the case of Re Hammond Estate (1998), 25 E.R.T. (2d) 188 said at para. 31:
There must be strong and compelling evidence of misconduct or neglect on the part of the done duly appointed under an enduring power of attorney before a court should ignore the clear wishes of the donor and terminate such power of attorney.
[19] The excerpt says that there must be misconduct or neglect. In this case, there is no evidence of misconduct on the part of Bill. In my view, in examining the best interests of the person, the court must take into consideration the changing nature of a person’s needs and always focus on what is in the best interests of the person at the particular time the appointment is sought to be made. The situation and circumstances of the existing attorney are also relevant.
[20] The statutory factors to consider as set out in s.24(5) are: (a) whether the proposed guardian is the attorney under a continuing power of attorney; (b) the incapable person’s current wishes, if they can be ascertained; and (c) the closeness of the relationship of the applicant to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.
[21] In this case, the powers of attorney granted in 1999 specifically have Donna as an alternate, which gives an indication of the faith Ena had placed in her daughter. It is clear from the evidence that Donna has her mother’s best interests at heart in making all her medical care decisions. She has de facto acted as power of attorney for personal care for years. Bill knows this. Bill acknowledges that Donna advocates for her mother to ensure that she receives the best care possible. She takes her mother out. She visits her regularly. She and her sister made arrangements for a PSW to ensure that Ena gets stimulation and one-on-one treatment. At the present time, she is one of 25 residents serviced by two support workers on the whole ward. Donna is concerned about her mother’s health. She has lost 25 pounds. She wishes to ensure that her mother lives the rest of her life with dignity and with her physical needs appropriately met. She is diligent. There is no competing affidavit from Bill setting out his assessment of Ena’s needs, or the efforts he has made to ensure that his wife receives the best care and treatment. Donna has done it, and he has allowed that to happen.
[22] In his affidavit, Bill speaks about making Sara his power of attorney for property and for personal care. He asked Sara to discuss with Donna possible resolutions to Donna’s concern about her mother not having enough money for her care. Sara suggested a separation of the funds held jointly between Ena and Bill. Bill acknowledges that Donna has not been receiving information about her mother’s medical condition and that is because he is the power of attorney and the nursing home would only share it with him. Donna’s inability to access Ena’s medical records was a factor in prompting her to bring this application. Bill refers to discussions between Sara and Donna regarding hiring of a PSW for Ena. Bill holds the power of attorney and he should be making active inquiries with respect to Ena’s health and needs and not delegating those inquiries and decisions to another.
[23] Donna has made de facto personal care decisions for Ena for years. Over the next few years, there will be significantly more personal care decisions which will need to be made. Donna has the experience to deal with these and I have no doubt that she will make decisions in the best interests of her mother.
[24] Accordingly, I am satisfied that it is in the best interests of Ena that Donna be appointed guardian of the person for Ena.
[25] The same test applies for appointing a guardian of property as it does for the person. The SDA specifically provides that the guardian shall manage the person’s property in a manner consistent with the decisions concerning the person’s personal care that are made by the person who has the authority to make those decisions. The apparently unilateral decision by Sara to reduce the PSW hours raises an issue as to whether the best interests of Ena are being considered.
[26] I am satisfied, based on all the evidence, that it is in the best interests of Ena that Donna be appointed her guardian for property. I would encourage Donna to seek to mend, if possible, her relationship with Bill. I would also encourage Bill to consider the history of Donna’s care for Ena and him, and view her conduct accordingly. There may have been misunderstandings in the past, but I would encourage all persons involved to work together to ensure the needs of Ena (and Bill) are adequately considered and met.
Disposition
[27] I acknowledge the correspondence from the Public Guardian and Trustee dated June 4, 2015 which outlines certain requests the Public Guardian has with respect to the appropriate order in the circumstances.
[28] A judgment shall issue including the following terms:
A declaration that the respondent Williamina Ena McCulloch (“Ena”) is incapable of managing property and that as a result, it is necessary for decisions to be made on her behalf by a person who is designated to do so.
That Donna Lyn Corewyn be appointed as guardian of property of Williamina Ena McCulloch.
That the management plan of Donna Lyn Corewyn is approved and that the guardian of property shall act in accordance with the management plans.
That the guardian of property shall commence an application to pass her accounts as the guardian of property of Williamina Ena McCulloch for the period from today’s date to the two year anniversary date of this order, within six months of the three year anniversary date of this order, and thereafter pursuant to court order.
That the requirement for the guardian of property to obtain a security bond is dispensed with.
A declaration that Williamina Ena McCulloch is incapable of personal care and specifically in respect of her own health care, nutrition, shelter, clothing, hygiene and safety, and, as a result, it is necessary for decisions to be made on her behalf by a person who is authorized to do so.
That Donna Lyn Corewyn be appointed as the guardian of personal care of Williamina Ena McCulloch.
That the guardianship plan of Donna Lyn Corewyn is approved and that the guardian of personal care shall act in accordance with the guardianship plan.
That the Public Guardian and Trustee’s fee for reviewing this application, as approved by the Attorney General in the amount of $250.00 plus HST of $32.50, shall be paid forthwith to the Public Guardian and Trustee from the property of Williamina Ena McCulloch.
COSTS
[29] I would encourage the parties to agree on costs. If they are unable to agree on costs, the applicant’s costs submissions limited to three pages, plus a Bill of Costs and supporting dockets, are to be delivered to me at my chambers in Welland within two weeks. The respondent has two weeks to respond with submissions limited to three pages and a Bill of Costs.
Sweeny J.
Released: September 29, 2015
COURT FILE NO.: 15-52929
DATE: 2015/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Donna Lyn Corewyn
Applicant
- and –
Williamina Ena McCulloch, and The Public Guardian and Trustee and William Millman McCulloch
Respondents
ENDORSEMENT
Sweeny J.
Released: September 29, 2015