Aiello v. Bleta et al.
[Indexed as: Aiello v. Bleta]
Ontario Reports
Ontario Superior Court of Justice
Dietrich J.
January 21, 2020
149 O.R. (3d) 500 | 2020 ONSC 62
Case Summary
Mental health — Incapable person — Power of attorney — Son appointed attorney for personal care with daughter as alternative — Incapable person living with her daughter, who for 11 years provided comprehensive caregiving — Son and daughter having acrimonious relationship — Son removed as power of attorney for not acting in good faith — Daughter appointed as power of attorney as she had acted as de facto decision-maker for years.
B and L were two of three adult children of a woman who was declared in 2010 to be incapable of managing her property. In 2008, she moved in with her daughter, B. In 2009 she had appointed her son, L, to be her attorney for personal care with B as alternative. In 2012, L and B were appointed by the court as co-guardians of their mother's property. L and B had a history of litigation and distrust between them. Their co-guardianship was ended in 2018 after B's action against L for reimbursement of expenses she incurred in providing care to their mother. The court appointed a new guardian who prepared a management plan. For 11 years, B provided her mother with comprehensive caregiving including showering, grooming, dressing, meal preparation, laundry, booking and attending medical and dental appointments, hair and nail appointments, filling and administering her prescriptions, arranging visits with family and friends, taking her out to restaurants, taking her on vacation and buying her clothing and necessities. L did not dispute that B provided those services. He objected to certain portions of the management plan. In 2019, he failed to attend at a hospital to sign consent forms to allow the mother's scheduled dental surgery to proceed. B asserted that L was remiss in his duties as attorney for personal care and that he did not have a close relationship with his mother. B applied to remove L as attorney for personal care.
Held, the application should be allowed.
L was removed as attorney for personal care, leaving B as the alternative to assume that position. L had not been acting in good faith. He refused to approve the reimbursement of expenses incurred by B in caring for their mother. His failure to sign the consent forms demonstrated that he was not making treatment decisions when necessary. It also appeared that he was not attempting to foster regular contact between the mother and supportive family members and friends, and in particular the mother had not seen L's family in years. Based on the animosity between L and B and their inability to work co-operatively in their mother's best interests, it was necessary that only one of them be authorized to make her personal care decisions. L had made such decisions from time to time, but B had been making such decisions daily and had acted as the de facto decision-maker for several years.
Statutes referred to
Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A [as am.]
Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 3 [as am.], 55(1), 57(3) [as am.], 66 [as am.], (1), (2.1), (6), (7), 67 [page501]
APPLICATION to remove an attorney for personal care.
Sean Graham, for applicant.
Rebecca Rauws, for respondent Marline Bleta.
D'Arcy J. Hiltz, for respondent Muazes Bleta, pursuant to s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.
David N. Delagran, for Hon. D. Lewis, Guardian of Property for the respondent Muazes Bleta.
Holly V.A. Cunliffe, for respondent LeRoy Bleta.
DIETRICH J.: —
Overview
[1] Muazes Bleta is 83 years of age. She has three adult children, Bertha Aiello ("Bertha"), Marline Bleta ("Marline") and LeRoy Bleta ("LeRoy"). Mrs. Bleta has physical and mental disabilities, including schizophrenia.
[2] Immediately following her husband's death in 2008, Mrs. Bleta moved into Bertha's residence in the City of Toronto. Bertha has been providing personal care services to Mrs. Bleta ever since.
[3] Bertha is not Mrs. Bleta's Attorney for Personal Care. Mrs. Bleta executed a "Continuing Power of Attorney for Personal Care" on December 18, 2009 (the "Power of Attorney"), in which she appointed LeRoy as her Attorney for Personal Care, and Bertha as her alternative Attorney for Personal Care.
[4] There is a history of litigation and distrust between Bertha and LeRoy. Bertha brought this application, initially, seeking to be appointed the guardian of Mrs. Bleta's personal care. She now seeks LeRoy's removal as Mrs. Bleta's Attorney for Personal Care, with the result that she, as the alternative, would assume that role. She also seeks custodial power over Mrs. Bleta.
[5] For the reasons that follow, I find that notwithstanding that Mrs. Bleta named LeRoy as her Attorney for Personal Care in priority to Bertha, I am persuaded that it is Bertha who has been acting as the de facto personal care decision maker for Mrs. Bleta for the last several years. Accordingly, I declare Bertha to be Mrs. Bleta's Attorney for Personal Care in substitution for LeRoy.
Background
[6] Dr. Kenneth Shulman, an expert in geriatric psychiatry, assessed Mrs. Bleta. In his report dated June 22, 2010, he concluded that Mrs. Bleta is incapable of managing her property and making personal care decisions. [page502]
[7] On October 19, 2010, this court declared Mrs. Bleta incapable of managing her property. On June 26, 2012, it appointed LeRoy and Bertha as co-guardians of their mother's property.
[8] On June 26, 2012, this court also declared the Power of Attorney valid. Paragraph 2 of the Power of Attorney provides that if LeRoy "cannot or will not act as my Attorney because of refusal, resignation, death, mental incapacity, or removal by the Court, I SUBSTITUTE my daughter, BERTHA AIELLO of the City of Toronto in the Province of Ontario, to act as my Attorney in the same manner and subject to the same authority as the person being replaced".
[9] The co-guardians were ordered to file a Management Plan and to pass their accounts by December 26, 2015. They have done neither.
[10] LeRoy and Bertha have a history of litigation and distrust between them. Their co-guardianship came to an end when Bertha commenced an action against LeRoy seeking reimbursement for expenses she incurred in providing care to Mrs. Bleta and seeking his removal as a co-guardian. This court terminated their roles as co-guardians of property and the Honourable Douglas Lewis was appointed in their place on November 21, 2018.
[11] In addition to this application, and since April 2014, Bertha has commenced three actions against LeRoy personally and in his capacity as a lawyer. LeRoy has commenced a receivership application relating to the family business, and there are outstanding applications to pass accounts in the estate of Mrs. Bleta's late husband Karafil Bleta and in the co-guardianship of Mrs. Bleta.
[12] D'Arcy Hiltz was appointed as Mrs. Bleta's lawyer pursuant to s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, as amended (the "SDA"), with respect to her guardianship. On February 22, 2019, this court ordered that Mr. Hiltz's role was limited to representing Mrs. Bleta on personal care issues until declared terminated by order of this court.
[13] For the past 11 years, with the assistance of her son, Bertha has been providing Mrs. Bleta with comprehensive caregiving including showering, grooming, dressing, meal preparation, laundry, booking and attending medical and dental appointments, hair and nail appointments, filling and administering her prescriptions, arranging visits with family and friends, taking her out to restaurants, taking her on vacation and buying her clothing and necessities. LeRoy does not dispute that Bertha provides these services. [page503]
[14] Mrs. Bleta has also had the benefit of paid companions, including Majlinda, whose services included keeping Mrs. Bleta company. Currently, Mrs. Bleta has no paid companion.
[15] Mr. Hiltz, as s. 3 counsel, visits Mrs. Bleta regularly and is assisted by a translator who translates Mrs. Bleta's first language, Albanian, to English and vice versa.
[16] When LeRoy and Bertha were acting as co-guardians of Mrs. Bleta's property, they agreed on a Management Plan, which was never submitted for approval. The Plan provided for a housing allowance of $1,000 per month and caregiving expenses of $1,500 per month, to be paid to Bertha from Mrs. Bleta's property, which is substantial.
[17] Until 2015, LeRoy co-operated by co-signing cheques to cover the expenses in accordance with the Plan. He then refused to sign any such cheques and Bertha paid all of Mrs. Bleta's personal care expenses, personally, including medical and dental costs. Ultimately, Bertha applied to the court for reimbursement of the amounts she expended on her mother's care. Bertha settled with LeRoy for less than full reimbursement. LeRoy asserted that the housing allowance should only be paid on terms. His terms included a full-time caregiver for Mrs. Bleta, regular unfettered access to Mrs. Bleta by LeRoy and other family members, and regular updates from Bertha on Mrs. Bleta.
[18] Following the appointment of the Honourable Mr. Lewis as guardian, LeRoy wrote to Mr. Hiltz on January 16, 2019. He sought Mr. Hiltz's agreement to provide a caregiver for Mrs. Bleta. Alternatively, he asked Mr. Lewis to determine whom Mrs. Bleta would like to have as her caregiver/companion.
[19] Mr. Hiltz responded by letter dated January 24, 2019 reporting that Mrs. Bleta preferred Majlinda as a caregiver/ companion and Bertha as her substitute decision-maker for personal care decisions. However, in November 2019, following a subsequent meeting with Mrs. Bleta regarding her wishes, Mr. Hiltz advised that her wishes were not clear and that at times she indicated a preference for Bertha and, at other times, LeRoy. She did, however, clearly and consistently express her wish to remain living at Bertha's residence.
[20] Since February 28, 2019, Bertha has been paying all of Mrs. Bleta's expenses. Mr. Lewis has prepared a Management Plan, but it has not yet been approved by the court.
[21] LeRoy's objections to Mr. Lewis' Management Plan include the amount of the housing allowance, the reimbursement of amounts paid by Bertha on behalf of Mrs. Bleta, the number of hours that Bertha and her family claim to spend caring for Mrs. Bleta, and Mr. Lewis' recommendation, supported by the [page504] recommendation of Mrs. Bleta's occupational therapist, Carol Bierbrier, that an elevator be installed in Bertha's home. LeRoy would agree to the elevator if Bertha agrees to mortgage her residence to pay for it.
[22] Ms. Bierbrier also recommended that because Mrs. Bleta had benefited from the services of a paid companion for 20 years prior to August 2015, she should be afforded this service again. As a co-guardian of Mrs. Bleta's property, LeRoy declined to use her funds to pay the companion, Majlinda, who then resigned because she could not count on her wages being paid. LeRoy explains that the non-payment arose because he believed that, in addition to companion services to Mrs. Bleta, Majlinda was providing administrative support services to Bertha, personally, for which Mrs. Bleta's estate should not be liable.
[23] When Mrs. Bleta was scheduled for dental surgery, Bertha sent LeRoy an e-mail message on September 26, 2019. She let him know that Dr. Bohdan Kryshtalskyj would extract three of Mrs. Bleta's teeth on November 1, 2019 and that LeRoy, as Attorney for Personal Care, would need to sign the consent forms. LeRoy responded within the hour asking to see Mrs. Bleta at Bertha's home and for the name of the hospital and the time of the surgery. Bertha responded, by e-mail, the same day, declining his request to see Mrs. Bleta at her house. She reasoned that it would not be good for their mother to witness the "bad blood" between them, which would be palpable if LeRoy came to Bertha's house. Instead, Bertha offered to take Mrs. Bleta to his house, a five-minute drive from hers. She noted that Mrs. Bleta "has not seen your family in a number of years and would love to see them at your house".
[24] LeRoy then approached Mr. Hiltz and suggested that Mr. Hiltz and he attend on Mrs. Bleta together at Bertha's residence since Mr. Hiltz had already scheduled a meeting with Mrs. Bleta. Bertha declined this request also and again offered to take Mrs. Bleta to LeRoy's residence. LeRoy agreed to pick his mother up from Bertha's residence immediately following Mr. Hiltz's scheduled meeting, and Mr. Hiltz agreed to escort Mrs. Bleta to LeRoy's car so that Mrs. Bleta would not witness the tension between Bertha and LeRoy. Ultimately, Bertha permitted LeRoy to meet with Mrs. Bleta at Bertha's residence.
[25] LeRoy reported to Mr. Hiltz that he wished to meet with Mrs. Bleta to determine whether she "understands what is going to happen, i.e., full anesthesia, removal of upper/lower teeth, and short-term side effects, long term effects . . . does she have any reservations". In the same e-mail, LeRoy told Mr. Hiltz that he [page505] would be speaking to the specialist about risks of the treatment and other options.
[26] On October 15, 2019, Mr. Hiltz asked Bertha to provide the name of the hospital where the dental surgery would take place and the time of the surgery. Bertha responded the same day with that information and in her e-mail stated: "POAC is required, LeRoy is required to attend." In that e-mail, Bertha also provided details of the pre-op appointment and notice of Mrs. Bleta's upcoming appointment with a heart doctor in Riverdale. Mr. Hiltz forwarded Bertha's e-mail to LeRoy promptly.
[27] LeRoy did speak with the surgeon, but he did not attend at the hospital on the morning of the surgery to sign the consent forms. In his absence, his sister Marline signed the forms, even though she was not an Attorney for Personal Care for Mrs. Bleta.
Position of the Parties
[28] Bertha asserts that LeRoy has been remiss in his duties as an Attorney for Personal Care, as prescribed by the SDA, and cannot or will not act as Mrs. Bleta's Attorney for Personal Care. In particular, she points to his failure to consent to treatment in accordance with the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. She further asserts that LeRoy does not have a close relationship with his mother, which is one of the criteria used in assessing the suitability of a guardian of the person under the SDA.
[29] Bertha also asserts that it is in Mrs. Bleta's best interests to continue to live with her because Mrs. Bleta has expressed a desire to do so, and Bertha could continue to make personal care decisions on her mother's behalf, as the duly authorized Attorney for Personal Care.
[30] Marline supports Bertha in her application.
[31] LeRoy asserts that he is the duly authorized Attorney for Personal Care, appointed by Mrs. Bleta when she was capable, and that he has been carrying out his duties. He further asserts that Bertha needs to put aside her own misgivings about him and co-operate with him in their mother's care by communicating with him openly on their mother's personal care needs and by allowing him unobstructed visits with their mother. He asserts that if Bertha is permitted to act as Attorney for Personal Care, his mother would be cloistered from him and his family and, therefore, she is not a suitable guardian of the person or Attorney for Personal Care.
[32] LeRoy further asserts that notwithstanding that Bertha is caring for Mrs. Bleta on a daily basis, her role is that of a caregiver and not a substitute decision-maker; and that it is he who is legally [page506] authorized to make decisions regarding Mrs. Bleta's personal care. In his view, it is Bertha's duty, as caregiver, to keep him apprised of Mrs. Bleta's care needs and to defer to his decision-making authority on all personal care decisions to be made on Mrs. Bleta's behalf.
[33] LeRoy further asserts that Bertha's role as a caregiver does not entitle her to become Mrs. Bleta's sole Attorney for Personal Care.
Legal Principles
[34] Section 66 of the SDA sets out the duties of a guardian of the person. Section 67 of the SDA provides that s. 66, other than the requirements relating to a guardianship plan, applies with necessary modifications to an attorney who acts under a power of attorney for personal care.
[35] These duties require that: (a) the powers and duties of an attorney of the person be exercised in good faith (s. 66(1)); (b) the attorney make decisions on the incapable person's behalf to which the Health Care Consent Act, 1996 applies in accordance with that Act (s. 66(2.1)); (c) the attorney seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person (s. 66(6)); and (d) the attorney consult from time to time with supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and the persons from whom the incapable person receives personal care (s. 66(7)).
[36] Section 55(1) of the SDA prescribes when the court may appoint a guardian of the person and when such appointment is not appropriate:
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.
[37] Section 57(3) of the SDA sets out certain criteria that a court shall consider in appointing a guardian of a person. They are (a) whether the proposed guardian is the attorney under a continuing power of attorney for property; (b) the incapable person's current wishes, if they can be ascertained; and (c) the [page507] 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.
Analysis
[38] In considering the duties of an attorney for personal care prescribed by the SDA, I find that LeRoy has not been acting in good faith. He refused to approve the reimbursement of expenses incurred by Bertha in caring for Mrs. Bleta and it appears that his failure to pay Majlinda resulted in her declining to serve as Mrs. Bleta's preferred caregiver/ companion. His failure to sign the consent forms for Mrs. Bleta's dental surgery, despite having been twice told that it would be necessary for him to attend at the hospital on the morning of the surgery to do so, demonstrates that LeRoy is not making treatment decisions on Mrs. Bleta's behalf when required to do so.
[39] It also appears that LeRoy is not seeking to foster regular contact between Mrs. Bleta and supportive family members and friends, and LeRoy does not regularly consult with supportive family members and friends and the persons who are providing personal care to Mrs. Bleta.
[40] Notwithstanding that LeRoy and his family live five minutes away from Mrs. Bleta, the evidence is that Mrs. Bleta has not seen his family in years. He asserts that seeing Mrs. Bleta in Bertha's home is better because Mrs. Bleta is not very mobile, and it is inconvenient for her to have to travel to his home. LeRoy admitted under cross-examination that his mother used to stay with him until it became clear that she needed more attention relating to "personal hygiene accidents". In 2016, LeRoy took his mother to his management office a few times where some of her late husband's relatives work so she could visit with them. Bertha asserts that Mrs. Bleta was unhappy during these visits because she does not care for these relatives and she begged not to go back.
[41] LeRoy submits that when he has had an opportunity to pick his mother up and take her out, he found Mrs. Bleta to be moody, agitated and upset, which LeRoy attributed to Bertha "filling her head" with negative thoughts in anticipation of a visit. As such, LeRoy deposed that, since 2016, he has had very few visits with his mother because he does not want to risk having his mother put in an irritable mood by Bertha.
[42] Bertha's evidence is that LeRoy does not consult with her regarding Mrs. Bleta's care and takes no interest in his mother's medical appointments but expects her to report to him. Bertha [page508] submits that LeRoy is hostile toward her and critical of her caregiving and that he interferes with her caregiving.
[43] LeRoy blames Bertha for his inability to carry out his duties as Attorney for Personal Care. He claims that she withholds information regarding Mrs. Bleta's healthcare needs, including failing to respond when asked about Mrs. Bleta's next medical appointment.
[44] I find that the record does not support LeRoy's theory that Bertha is to blame for his failure to carry out his duties effectively. While it is evident that Bertha is not entirely comfortable having LeRoy in her home while they are opposing parties in various litigious matters, in fact, her rationale for disallowing LeRoy into her home was that it would not be in Mrs. Bleta's best interests. She believed that it would be a negative experience for their mother to see the "bad blood" between them. Regardless, ultimately, Bertha conceded and agreed to have LeRoy attend at her home with Mr. Hiltz.
[45] The occupational therapist has recommended a caregiver /companion for Mrs. Bleta. Mr. Hiltz supports this recommendation. Neither LeRoy nor Bertha opposes the hiring of a companion/caregiver, though Bertha reserves the right to approve any candidate put forward by LeRoy. LeRoy does not disagree that Bertha should be involved in the selection of the companion/caregiver, who will spend a lot of time in Bertha's home. LeRoy has expressed views on the ideal candidate (i.e., a female who speaks Albanian or Turkish, both of which Mrs. Bleta speaks) but he has not yet found such a companion. LeRoy asserts that he requires Bertha's co-operation in selecting a caregiver/companion and submits that he is unable to make a commitment to hire someone if Bertha will ultimately reject them. Based on the record, LeRoy has not put forward any candidate for Bertha's consideration, but, rather, has suggested that Bertha source and put forward some suitable candidates.
[46] LeRoy submits that notwithstanding Bertha's lack of co-operation and her resistance to him visiting Mrs. Bleta in Bertha's home, he has continued to act as Mrs. Bleta's Attorney for Personal Care in Mrs. Bleta's best interests. In support of this submission, LeRoy describes a trip to Macedonia he planned to take with his mother at Christmastime in 2018. Mrs. Bleta preferred to go in the summer. LeRoy submits that Bertha pre-empted his plan and took their mother to Macedonia in May. A dispute then erupted between Bertha and LeRoy when LeRoy refused to sign the medical insurance forms for Mrs. Bleta. LeRoy submits that the delay in signing the forms was necessary for him to ensure that Mrs. Bleta was covered by the [page509] insurance. He deposed that he was concerned that Mrs. Bleta might have been ineligible for coverage because she required assistance with showering and dressing. Ultimately, coverage was not an issue.
[47] LeRoy further submits that he carried out his duties as an Attorney for Personal Care in 2012 or 2013, when he took his mother to the hospital for an X-ray after she fell.
[48] Marline's evidence is that LeRoy is an absentee Attorney for Personal Care. She suggested to him that he has not been taking care of his mother and, with his full-time job, he is not capable of looking after her.
[49] Despite the ongoing litigation, LeRoy remains optimistic that he can work with Bertha on personal care issues, provided that she communicates with him regarding their mother, and allows him to visit their mother in her home, for short visits, without the need to involve lawyers.
[50] I do not doubt that each of LeRoy and Bertha loves Mrs. Bleta and wishes to see that she is properly cared for. Based on the animosity between them, the various contentious matters that remain outstanding, and the inability of LeRoy and Bertha to work co-operatively in the best interests of their mother, it is apparent that it would be very difficult for them to set their personal differences aside and agree to and execute a personal care plan for Mrs. Bleta. Their attempt to act as co-guardians of Bertha's property failed.
[51] It is therefore necessary that one Attorney for Personal Care of the two chosen by Mrs. Bleta be authorized to make personal care decisions on her behalf going forward. I accept that LeRoy has carried out his duties as Bertha's Attorney for Personal Care some of the time. He took her to the hospital for an X-ray in 2012 or 2013. He made some inquiries respecting her dental surgery and consulted with her, and the surgeon; however, despite the clear guidance from Bertha that it would be necessary for him to attend at the hospital to sign the consent forms, he did not. His evidence is that after consulting with the surgeon and the surgeon's staff and leaving a copy of the Power of Attorney with them, he was told by them that nothing further was required of him. It ought to have been obvious to LeRoy that informed consent would be a pre-condition to his mother's surgery and that he, as her Attorney for Personal Care, would be responsible for consenting to that treatment.
[52] While LeRoy has made personal care decisions for Mrs. Bleta as her Attorney for Personal Care from time to time, the reality is that Bertha is making personal care decisions for Mrs. Bleta every day. In addition to making decisions with respect to [page510] treatment under the Health Care Consent Act, 1996, an attorney for personal care is responsible for making decisions with respect to health care, nutrition, shelter, clothing, hygiene and safety. Mrs. Bleta has been living with Bertha for more than 11 years and when Mrs. Bleta is not able to understand information that is relevant to making a decision concerning one or more of these matters, the evidence is that Bertha makes these decisions for her. Many of these decisions (e.g., what Bertha will wear, what she will eat, when she will shower, whether she should be seen by a doctor, etc.) are decisions that are made by Bertha on a daily basis.
[53] The evidence of three of Mrs. Bleta's healthcare professionals shows that Bertha, and not LeRoy, has been very involved in Mrs. Bleta's personal care. On June 3, 2016, Dr. L. Jaksic-Tomonovic, who has been treating Mrs. Bleta since May 2005, wrote a letter stating: "The patient's formal power of attorney for personal care is her son LeRoy Bleta, but it has been her daughter Bertha Aiello who has been bringing Mrs. Muazes Bleta to her appointments and taking care of her needs." On May 19, 2016, Mrs. Bleta's psychiatrist, Dr. Donna Kim, wrote in her "Progress Notes on Mrs. Bleta": "Her formal POA for personal care is her son LeRoy Bleta, but it has been her daughter Bertha Aiello who has bee [sic] faithfully bringing Mrs. Bleta to all her appointments and tending to Mrs. Bleta's care and needs." Mrs. Bleta's dental surgeon, of 13 years, wrote in his letter dated June 24, 2016 that "Bertha Aiello has been the individual who has arranged scheduling of the appointments and has accompanied her mother to the office . . . [and] supervised and coordinated the payment of all accounts for her mother's treatment."
[54] Though I am not being asked to appoint a guardian of personal care, the criteria set out in s. 57(3) of the SDA are useful in this case. Neither LeRoy nor Bertha is Mrs. Bleta's guardian for property. Mrs. Bleta's wishes regarding her preference as between LeRoy and Bertha as an Attorney for Personal Care are unclear. Earlier, she had expressed a preference for Bertha, but she also told Dr. Shulman that she trusted LeRoy more than Bertha. What is clear is that she wishes to remain residing in Bertha's home. It is undisputed that Bertha and her mother are very close. They have lived together for the past 11 years and Mrs. Bleta has indicated that she does not want anyone other than Bertha bathing her or dressing her.
[55] In naming both LeRoy and Bertha her Attorneys for Personal Care, Mrs. Bleta expressed confidence in both of them and appointed each of them, sequentially. In removing LeRoy [page511] and replacing him with Bertha, the court is not imposing a court-appointed guardian in the place of an attorney chosen by Mrs. Bleta. Rather, in the unique circumstances of this case, where the incapable person has lived with the alternative Attorney for Personal Care appointed by her for an extended period of time, and that alternative Attorney for Personal Care has been actively engaged in making decisions on the incapable person's behalf in the areas of health care, nutrition, shelter, clothing, hygiene and safety as a de facto attorney for personal care, it is appropriate that she be declared the Attorney for Personal Care for Mrs. Bleta.
[56] LeRoy, by his own admission, does not have the same amount of time to devote to his mother's personal care and he does not live with her. He has not proposed that he become more active in Mrs. Bleta's day-to-day personal care needs. He recommends that a companion/caregiver be hired to assist Bertha with caring for Mrs. Bleta.
[57] I find that LeRoy's concern that Bertha would cloister Mrs. Bleta from LeRoy and his family is misplaced. When Bertha initially refused to allow LeRoy to visit with her mother around the time of the dental surgery, she twice offered to drive Mrs. Bleta to LeRoy's home where Mrs. Bleta could visit with him and his family. Further, as an Attorney for Personal Care, Bertha would be legally obligated under the SDA to foster regular personal contact between Mrs. Bleta and Mrs. Bleta's supportive family members and friends. On the evidence, I am not persuaded that Bertha would fail to comply with this duty.
Disposition
[58] For the above reasons, LeRoy Bleta shall be removed as the Attorney for Personal Care for Muazes Bleta, and Bertha Aiello, the alternative Attorney for Personal Care named in the Power of Attorney, shall act as Mrs. Bleta's Attorney for Personal Care.
[59] Bertha's request for a custodial power over Mrs. Bleta is not appropriate since Bertha is no longer seeking to be appointed as a guardian of Mrs. Bleta's person.
[60] The appointment of D'Arcy Hiltz as lawyer for Muazes Bleta pursuant to s. 3 of the SDA, with respect to personal care matters shall be and is hereby terminated.
Costs
[61] It is indeed regrettable that Bertha and LeRoy, who have shown themselves to be litigious, could not put their personal differences aside and, as Mrs. Bleta's children, resolve the issues [page512] relating to her personal care without resort to the court. Despite Mrs. Bleta's appointment of each of them, sequentially, as her attorneys for personal care, they could not find a way to mutually formulate and execute a plan for her personal care that is in her best interests.
[62] I agree with the submissions of Mr. Hiltz that this dispute between Bertha and LeRoy is not a dispute that should be funded by Mrs. Bleta's property. Accordingly, each of LeRoy and Bertha shall bear their own costs.
[63] Subject to review on a passing of accounts, the reasonable fees relating to this application, of Mr. Hiltz, as s. 3 counsel with respect to personal care matters and, of Mr. Lewis, as guardian of property, shall be paid from Mrs. Bleta's property.
Application allowed.
End of Document