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End Of Life Decisions – Do Doctors Have The Right To Decide?

November 11, 2011 in Applications for the Opinion and Direction of the Court, Elder Law, Evidence in Estate Litigation, Halacha and Estate Litigation, Public Policy & Estates by Charles Wagner

Mr. Rasouli was in a permanent vegetative state. Fed through a tube inserted into his stomach, he was only being kept alive by a mechanical ventilator. Believing there was no realistic hope of recovery the doctors wanted to remove his life support. His family said no. Who has the right to make these decisions?

The doctors suggested that they do. The family disagreed.

As Shia Muslims, Mr. Rasouli’s family believed that as long as a person was alive everything should be done to prevent death. Accordingly, they opposed the doctors’ plan to withdraw the mechanical ventilation.

This case was first heard by Madam Justice Himel of the Ontario Superior Court of Justice (FN1). It was appealed to the Ontario Court of Appeal (FN2). Now leave is being sought to have the matter heard by the Supreme Court of Canada. Thus far, the courts have sided with Mr. Rasouli’s family. This case depends on the definition of “treatment” in the Ontario Health Care Consent Act (FN3) (the “Act”) and the steps set out by the Act to resolve disagreements between doctors and substitute decision makers about treatment plans. Let’s review the law.

The Act provides that medical treatment shall not be administered without the consent of the patient. If the patient is not capable of giving consent, the treatment must be approved by the person appointed as the patient’s substitute decision-maker. Sounds simple? It’s not.

Key to the Court’s review is the legal meaning of the word “treatment”(FN4). Also fundamental to the decision making process are the real wishes of the patient. The substitute decision-maker’s wishes were unimportant – it’s what the patient wanted to do that is key.

The doctors argued that, in this context, “treatment” as defined in the Act does not include the withholding or withdrawal of treatment that had no medical value to the patient. Hence, the withdrawal of such treatment could be done without the patient’s consent. The doctors argued that the Act merely enshrined the common law which recognized a doctor’s right to withhold or withdraw treatment. The doctors further argued that according to the common law they were not permitted to continue “inhumane” treatment even if the patient or his substitute decision-maker demanded it. What did they mean by “inhumane”? In my review of similar cases, and paraphrasing some of the arguments, it seems that in this situation the doctors may feel that continuing unnecessary treatment diminishes the quality of life of the patient and exposes him to gratuitous discomfort and indignity. It is the extension of death – not life and they argue is inhumane (FN5).

There was some sympathy at the Ontario Court of Appeal for this position. While they dismissed the doctors’ appeal the Court recognized that their position was serious and warranted careful consideration.

Let’s examine why they sided with the Rasouli family. There are a number of definitions relating to “treatment” in the Act and both the Superior Court of Justice and the Court of Appeal pointed out that the definition of a “plan of treatment” involved “… the withholding or withdrawal of treatment in light of the person’s current health condition”. Moreover, given that Mr. Rasouli’s wishes were not known, the Act allowed the doctors to apply to the Health Care Consent and Capacity Board to disregard the substitute decision-maker’s decision to maintain life support. At issue before the Board would be what was in the best interests of the patient.

The court decisions will likely only delay the argument as to who has the right to decide. Both the doctors and the Rasouli Family have a right to appeal to the Ontario Superior Court of Justice the decision of the Board on questions of law or fact. On an appeal, the court is authorized to exercise all the powers of the Board, to substitute its opinion for that of a physician, a substitute decision-maker or the Board or to refer the matter back for a rehearing. (FN6)

Why is this case so important to the Jewish community?

End of life issues have halachic implications. Do we want a stranger whose views on end of life issues may not be in accordance with halacha to be the decision maker? It is for this reason that both the Rabbinical Counsel of America (RCA) and Agudath Israel have drafted Halachic Living Wills. I have written extensively on this topic and refer the reader to http://bit.ly/halivwill This article canvasses the issues, reviews some relevant case and provide links to both the RCA and Agudath Israel precedents (FN7). I caution the reader that these precedents were drafted for American jurisdictions. Accordingly, anyone contemplating their use should review the halachic living will precedents with a competent lawyer in your jurisdiction to ensure they would be enforceable here.

There is another issue relevant to all Canadians regardless of their religious affiliations. Our health care system is in crisis. Many say that it is underfunded and mismanaged. At the initial hearing before Madam Justice Himel the hospital, separate and apart from the doctors, brought up the issue of limited resources. At the hearing, their lawyer argued that hospitals could be overwhelmed with individuals with no hope of recovery remaining on life support for extended periods of time and thereby deny those who can be helped access to scarce resources. This issue was not argued at the Court of Appeal, but it is an issue of importance. Is the lack of funding a driving issue in this debate?

This short review of the case law should not be taken as legal advice. Based on my experience in dealing with these cases, they often turn on the specific facts. If you have a legal question relating to something similar, you are best advised to seek out competent legal counsel to determine your best course of action.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation.

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FN1. Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre 2011 CarswellOnt 1650, 2011 ONSC 1500, 105 O.R. (3d) 761, 231 C.R.R. (2d) 26. An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONSC 1500 (CanLII).

FN 2. Rasouli (Litigation Guardian of) v. Sunnybrook Health Sciences Centre 2011 ONCA 482. An online version of the decision is available at Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482.

FN3. See online version of the legislation provide by e-laws which can be found at Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A

FN4. The Ontario Court of Appeal’s decision at paragraphs 19-24 review the relevant provisions with respect to the use of the term “treatment” under the Act. See sections 1, 2, 10, and 21. The Court of Appeal’s analysis is set out below.

20] Of those provisions, the operation of s. 21 of the Act warrants brief explanation. It sets out the principles that a substitute decision-maker must follow in deciding whether to give or refuse consent to a proposed treatment on behalf of an incapable person.

[21] Under s. 21(1)1., if the substitute decision-maker knows of a wish, applicable to the circumstances, expressed by the incapable person while he or she was capable, after attaining age 16, then the substitute decision-maker must abide by that wish and give or refuse consent in accordance with it. (Ms. Salasel accepts that that provision has no application in her husband’s case).

[22] Section 21(1)2. applies where the substitute decision-maker is unaware of any such wish (as is the case here) or where compliance with such a wish proves impossible. Under those circumstances, a substitute decision-maker must act “in the incapable person’s best interests” in deciding whether to give or refuse consent to a proposed treatment.

[23] Section 21(2) of the Act sets out various factors that a substitute decision-maker must take into account in deciding whether the proposed treatment is or is not in the incapable person’s best interests. Broadly speaking, those factors fall under two heads, one relating to the values, beliefs and wishes of the incapable person (s. 21(2)(a) and (b)), the other to the nature and medical value of the treatment proposed in the circumstances (s. 21(2)(c)).

FN5. Please see Justice Cullity’s decision Scardoni v. Hawryluck, 2004 CanLII 34326 (ON SC) and in particular paragraphs 39 -50 where he reviews the concept of well being under section 21(2) (c) of the Act. In this court case a decision of the Board was appealed to the court. The Board directed the family to consent to the removal of their mother from a ventilator. The family argued that by virtue of a power of attorney for personal care they were appointed as substitute decisions makers. While the decision of the Board was overturned on the issue of “Best Interests” and “Quality of Life” Justice Cullity agreed with the Boards position when it stated, “We thought “well-being” involved more than mere life itself. The phrase is subjective as used because it was used in conjunction with the word “condition,” which connoted to us a more objective assessment of the status of a person’s illnesses and physical situation. “Well-being” includes considerations such as the person’s dignity and levels of pain.”

FN6. Appeals to the Ontario Superior Court of Justice from decisions of the Board on questions of law or fact are permitted by section 80 of the Act. On an appeal, the Court can substitute its opinion for that of the doctor, the substitute decision-maker and or the Board. Equally important the Court “may receive new or additional evidence as it considers just.”

FN7. See the website provided by the Orthodox Union of Orthodox Rabbis entitled “End of Life Issues – Halachic Resources and Forms”. This is available on line at http://bit.ly/ouresrc and is an invaluable resource. Please note that any precedent used has to be taken to a competent lawyer in your jurisdiction to determine if the forms provided are applicable to the particular client and specific jurisdiction. Questions to be addressed include whether there will compliance with the formalities of execution in the relevant jurisdiction and whether the requirement under the Halachic power of attorneys to consult a rabbi and be bound by his decision constitute a delegation? If it does then is the Power of Attorney is invalid or is it saved by the concept of “protector” as outlined in Waters; Law of Trusts in Canada? I have addressed some of these issues in an article “Are Halachic Powers of Attorney for Personal Care Binding in Ontario?” which can be found at http://bit.ly/halivwill

Are Promises Enforceable?

June 10, 2011 in Applications for the Opinion and Direction of the Court, constructive trust, Elder Law, Equity, Estate Litigation, Unjust Enrichment, Constructive Trust and Quantum Meruit Claims in Estates, Wills by Charles Wagner

Lora and Jeffrey started living together. As their 23 month relationship grew stronger Jeffrey promised Lora that when he died Lora would get his RRSPs worth about $1,750,000 as long as they were still living together. Jeffrey insisted that Lora sign a cohabitation agreement before he would keep his promise. Before the agreement was signed Jeffrey died. Was Jeffrey’s promise legally enforceable? At trial Justice Brown of the Ontario Superior Court of Justice (FN1) decided that Lora would get the money. Jeffrey’s estate appealed.

Lora sued the estate on a number of different grounds. I would like to focus on one which the Ontario Court of Appeal (FN2) addressed – was Jeffrey’s promise legally enforceable under the doctrine known proprietary estoppel? Let’s start by defining some terms.

Let’s assume Jeffrey made a promise to Lora. Proprietary estoppel is a legal doctrine which prevents Jeffrey from enforcing his legal rights with respect to property once he made a promise or representation not to do so. This is applied if Lora relied on the representation/promise and would suffer if Jeffrey or his estate enforced his legal rights. The court would force Jeffrey or his estate to keep the promise if it would be palpably unfair to allow him to strictly enforce his legal rights. Proprietary estoppel is an example where courts will look to equitable doctrines to address unconscionable wrongs.

Sometimes courts will use equitable remedies, like proprietary estoppel, to address a situation where the application of strict legal rights would be unfair. Under these circumstances the court may ignore a contract or a testamentary document and provide the plaintiff with a remedy. By applying equitable principals courts will sometimes enforce promises.

The Ontario Court of Appeal in Schwark Estate v . Cutting(FN3) reviewed a number of causes of action and remedies through which a promise may be enforced. In the course of that analysis the Court of Appeal summarized the essential elements of proprietary estoppel as follows:

the owner of land induces, encourages or allows the claimant to believe that he has or will enjoy some right or benefit over the owner’s property;
in reliance upon this belief, the claimant acts to his detriment to the knowledge of owner of the land; and
the owner then seeks to take unconscionable advantage of claimant by denying him the right or benefit which he expected to receive.

So what does proprietary estoppel have to do with Lora and Jeffrey’s situation in the Belvedere v. Brittain Estate? Lora’s lawyers raised a number of equitable arguments (FN4) which the court dismissed. The Ontario Court of Appeal dismissed those arguments finding that Jeffrey’s estate was not unjustly enriched by Lora’s contributions and accordingly the trial judged erred in applying the doctrine of constructive trust. At that point the court considered the alternative remedy of proprietary estoppel.

The first issue addressed by the Court was whether this doctrine of enforcing promises relating to land could be used to enforce promises relating to RRSPs. The Ontario Court of Appeal noted that there is some controversy on this point, but it proceeded with the analysis on the assumption that it did apply. (FN5). A key issue in enforcing such a promise is that Lora had to rely on it to her detriment. Seeing that she did not rely on the promise and suffer any loss the court dismissed the proprietary estoppel argument.

So does that mean that promises are not legally enforceable? Maybe. The Ontario Court of Appeal decision makes room for such an argument if it meets the criteria set out in Schwark Estate v . Cutting. In an article published in the Estate and Trusts Quarterly, Ian Hull, a leading estate litigator stated (FN6), “While the doctrine of proprietary estoppel has deep roots in the British courts, the recent developments in the context of estates seem to point to a new and effective remedy available to claimants in the context of estate litigation”.

Charles B. Wagner is a partner at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation

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FN1. Belvedere v. Brittain Estate 2007 CanLII 32666 (ON S.C.), (2007), 45 R.F.L. (6^th) 81. Justice E.R. Browne of the Superior Court declared that Ms Lora Belvedere was entitled to a constructive trust in Mr. Brittain RRSPs at the time of his death, to be satisfied by payment to Ms. Belvedere of $1,750,000.

FN2. Belvedere v. Brittain Estate, 94 O.R. (3d) 655 (2009) OCA . To access the case on line see bit.ly/Belvedere/Brittain

FN3. Schwark Estate v. Cutting, 2010 ONCA 61. To access the case on line see http://bit.ly/Schwark

FN4. Lora’s lawyers argued that the estate of Mr. Brittain was unjustly enriched and that the trial judge was correct in finding a constructive trust on $1,750,000 of the estate assets in favour of Lora. Alternatively, Lora’s lawyers argued that the trial judge should have considered the remedies of a “resulting trust” and or “proprietary estoppel”.

FN5. See paragraph 67 of Belvedere v. Brittain Estate, 94 O.R. (3d) 655 (2009) OCA. To access the case on line see bit.ly/Belvedere/Brittain

FN6. Ian Hull and Suzana Popovic-Montag’s article “Proprietary Estoppel — An Innovative Claim Against the Assets of an Estate can be found in the Estate and Trust Reports, 3^rd series 2009. The cite is 55 E.T.R. (3d) 44.

May 16, 2011 Seminar – Bnai Brith Seminar – “Financial Predators and the Elderly – Banton v Banton.”

May 1, 2011 in Applications for the Opinion and Direction of the Court, Capacity, Challenging the Validity of Wills, constructive trust, Dependant Support Claims, Elder Law, Estate Litigation, Executors / Trustees, Fraud, Wills by Charles Wagner

The Estate and Trusts Group, Lawyers Division Bnai Brith and the adult education committee of Shaarei Shomayim are sponsoring a continuing legal education seminar entitled “Financial Predators and the Elderly – Banton v Banton.”

In this case the 88 year old George Banton fell in love with a 32 year old waitress named Muna. He married Muna and made a new will that disinherited his children. Virtually all contact with his kids stopped. At the time Mr. Banton was depressed, terminally ill, and mentally unwell. On hearing that their father was certified as incapable and that Muna, had withdrawn $10,000 from his account, George’s sons used their power of attorney to transfer George’s money into an irrevocable inter vivos trust under which they and CIBC Trust Corporation would be the trustees. The trust allowed the money to be used for George’s during his life and would go to his children after his death.

When George died his children challenged the new Will and the validity of the marriage to the much younger Muna. She challenged the sons’ creation of the trust. The fact situation in Banton v Banton underscores the risk to the elderly of being victimized by financial predators who look to marry a vulnerable older person as a means to take away their money and disinherit their children. To quote the judge in the Banton case, “I have no doubt at all that this influence was deliberately exerted to enable her to obtain control and, ultimately, the ownership of his assets…. After she consented to marry him, her influence became overwhelming and irresistible. The speed with which she was able to procure a will and a power of attorney in her favour is testimony to this as well as to his weak and vulnerable mental condition. …Thereafter, he was held incommunicado as far as his family were concerned…. I believe George Banton was a mere puppet, when he was not simply a bystander, during the guardianship proceedings.”

These continuing B’nai Brith legal education seminars have been going on for approximately four years. Many members of B’nai Brith are professionals whose practice involves servicing senior citizens and their families. B’nai Brith runs these seminars in order to meet present and future educational needs of our membership’s legal and accounting profession. These seminars were inspired, in part, by legal problems of concern to the Jewish community as well as the community at large.

To educate attendees these seminars feature some of Ontario’s premiere estate litigators. These lawyers will be participating in mock court proceedings based on the fact scenario of Banton v Banton. Prior to the moot court Rachel Blumenfeld, an estate lawyer at Miller Thomson (bit.ly/rblumenfeld), will explain the legal options open to children wanting to protect elderly parents in second marriage situations. Thereafter Rabbi Joe Kanofsky of Shaarei Torah will speak from an ethical pastoral perspective about the obligations and choices to the children, parent and professionals when dealing with this type of scenario. The Rabbi’s presentation can be used by lawyers towards fulfilling part of their mandatory 3 hours of continuing professional development related to professional responsibility, ethics and practice management.

The judge for the moot appeal will be Jordan Atin (http://bit.ly/jordanatin). Archie Rabinowitz (http://bit.ly/arabinowitz) and Kimberly Whaley (http://bit.ly/kwhaley) will be representing the Banton children and Ian Hull (http://bit.ly/ianhull) and Charles B. Wagner (http://bit.ly/cwagner) will be representing the waitress.

Each attendee will receive a binder and a flash drive which will contain papers prepared by the lawyers about different aspects of the case as well as some actual court documents relating to Banton. At the end of the seminar there will be a question and answer session from the panel and the participants.

The seminar will be held Monday, May 16^th, 2011 at Shaarei Shomayim 470 Glencairn Ave ON M5N 1V8. Registration starts at 7:30 am. and the seminar starts at 8:00 a.m. For information or to register, call Hyla Reichmann at (416) 633-6224, ext. 128, or email hreichmann@bnaibrith.ca .

When is Probate Not Needed

May 4, 2010 in Applications for the Opinion and Direction of the Court, Claims Against Estate: Summary Procedure, Elder Law, Estate Litigation, Executors / Trustees, Probate, Wills by Charles Wagner | 3 comments

It is important for people who wish to stop estate assets from being distributed to know that a certificate of appointment (“Probate”) is not always necessary to effect the transfer of assets. For example,

When there is jointly-owned real property or bank accounts those assets pass to the surviving joint tenant by right of survivorship. In this instance the only thing needed by the surviving joint tenant is to have a death certificate. There may still ways to prevent the transfer depending of the facts specific to the situation.
Real Estate, under certain circumstances, may be transferred under a will without probate. See Bob Aaron’s article at http://www.thestar.com/article/248950 and the Memo to Land Registrars from Kate Muray dated October 30, 2000 at Registrar’s Memo where land registars are provided guidelines under what circumstances they are authorized to waive the requirement of a certificate of appointment of estate trustee when approving the transfer of property.
Insurance Policies, RRSPs may designate a beneficiary and probate may not be necessary to access those funds.
Shares in a private corporation. In order to avoid probate fees sophisticated investors use multiple wills. Since a great deal of wealth may be concentrated in the shares of these private corporations the testator may have made a separate will to deal with these shares and probate would not be necessary. For those interested in this topic I refer you to the Granovsky Estate case.

For those who wish to stop the distribution of non probatable assets it is important to know that more might be required then simply blocking probate by filing a notice of objection. If the asset in question is real property then one should contact a lawyer and investigate the possibility of obtaining a certificate of pending litigation or caution against title. If one seeks to stop the transfer of shares then one must go to court and seek judicial intervention. Those who ignore these possibilities do so at their peril.

How to Apply for Probate In Ontario

May 4, 2010 in Challenging the Validity of Wills, Elder Law, Estate Litigation, Executors / Trustees, Orders for Assistance, Probate, Wills by Charles Wagner

The best step an estate trustee can take is to approach an experienced solicitor for assistance in obtaining probate. The process will likely go far quicker and more efficiently. For those who wish to educate themselves on how to obtain probate here are some sites that might prove useful:

The Law Society of Upper Canada at http://rc.lsuc.on.ca/jsp/ht/prepareAppCertAppEstateTrusteeWithWill.jsp#s7
Ministry of Attorney General – Where do I file an application for “Letters Probate”
See RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194 Rules 74.04, 74.05, 74.05.1, 74.06, 74.07, 74.08, 74.09
sections 5-7 of the Estates Act, R.S.O. 1990, c. E.21
Estates Administration Act
Estate Administration Tax Act
Succession Law Reform Act

Seduction, Marriage and Elder Abuse

April 11, 2010 in Capacity, Challenging the Validity of Wills, Dependant Support Claims, Elder Law, Estate Litigation, Executors / Trustees, Unjust Enrichment, Constructive Trust and Quantum Meruit Claims in Estates, Wills by Charles Wagner

Maurice Banton was an 88 year old father too unwell to live alone. His children moved him into a senior’s residence. Maurice meets Muna, a waitress working at the senior’s residence, and romance blooms. Did I forget to mention Muna was 50 years younger that Maurice?

This was the case of Banton v Banton (FN1) and its fact situation underscores the risk to the elderly being victimized by financial predators. Was Muna really after Maurice’s money? To quote the judge, “I have no doubt at all that this influence was deliberately exerted to enable her to obtain control and, ultimately, the ownership of his assets.”

Despite the protestations of his children, the young waitress woos the elder Mr. Banton and gets him to marry her. Unbeknownst to his children the young lady also contacts her lawyer and arranges for her new husband to make new wills which cut out his children. Why would a father who loved his children do such a thing? The court found that “It is the case of a lonely, depressed, terminally ill, severely disabled and cognitively impaired old man whose enfeebled condition made him an easy prey for a person like Muna with designs on his property.” Maurice suffered from the delusions that his children did not love him and only wanted his money. This insane delusion directly impacted on the decision to disinherit his children.

It was clear to the judge that the decision to give him money to his wife was not Mr. Banton’s. On the contrary, that decision was really the wife’s who imposed her will on him. The new Mrs. Banton played on her husband’s upset that his children sold his house and, contrary to his hope and expectation, they had put him into Lifestyles instead of allowing him to live with one of them. George Banton believed his unfounded allegation that his children were not interested in him and were only interested in his money. So does this mean Mrs. Banton gets nothing? Not so fast.

The court noted that while the man did not have the capacity to make a will, he did have the capacity to get married. Since the threshold for the capacity to marry was so low, the children’s attempt to annul it did not succeed. Apparently, even a man who is lonely, depressed, terminally ill, severely disabled and cognitively impaired had sufficient memory and understanding to continue to appreciate nature and responsibilities of marriage and that was sufficient to validate the marriage. Furthermore, in Canada, Ontario’s Succession Law Reform Act provides that a Will is revoked by the marriage of the testator so that despite the fact that Muna deliberately planned this charade it looked like Maurice’s previous Will was cancelled and the woman who schemed to obtain his property would succeed. Under the Succession Law Reform Act a spouse would inherit a preferential share of Maurice’s estate ($200,000.00) under an intestacy plus her distributive share. Fortunately for Maurice’s children, Justice Cullity found a way to do the right thing.

In this case, the children were fortunate that the judge found that the father’s residence was really held in trust for the children so it did not form part of the estate. Muna did not get much money. This time the children were lucky. Unfortunately, that is not always the case.

Anecdotally, as someone whose practice focuses in on estate litigation and elder abuse I see it happening more often. There is a very interesting paper (FN2) published by a Statistics Canada based on Statistics Canada sources. They report that “…overall, 7% of older adults experienced some form of emotional or financial abuse by an adult child, caregiver, spouse or common law spouse with whom they had contact in the five years prior to the survey. The vast majority of emotional and financial abuse was committed by spouses. Senior men (9%) were more likely than senior women (6%) to report being victims of emotional or financial abuse.” To measure financial abuse Statistics Canada and the Toronto Police Service (FN3) asked seniors certain questions which I have summarized below. If one suspects the answer is yes to more than half it’s time to seek out professional counsel for advice.

Has the alleged rogue
1.     tried to limit the elderly person’s contact with his family or friends?
2.     put the elderly person down or calls them names to make them feel bad?
3.     is jealous and doesn’t want the elderly person to talk to other men/women?
4.    Threatens to withdraw care or threatens the elderly persons or someone close to the elderly person?
5.    demands to know who the elderly person is with or speaks to at all times?
6.    damages or destroys the elderly person’s possession or property?
7.    prevents the elderly person from knowing or having access to the elderly person’s income or financial information?
8.    tries to compel the elderly person to relinquish control over finances?
9.    tries to force the elderly person to give up something of value?
10.  they try to force you the elderly person sign documents which were not understood or to change Last Will and Testament or try to obtain Power of Attorney over your finances?
11.   introduced a new lawyer into the situation which the elderly person never met before and has no knowledge of the elderly person’s history?

Do not consider this case review as legal advice. It is presented merely to demonstrate some of the disputes dealt with by this firm and its counsel and how one court dealt with some of the issues relating to elder abuse. It is important to remember that each case has a different set of facts which may give rise to additional and or different remedies or prevent the court from awarding the same type of relief. If you believe your fact situation is similar and litigation may be pending or has already begun, it is always prudent to contact a competent lawyer who will deal with the specific fact situation and legal issues particular to your case.

FN1 Banton v. Banton 1998 CarswellOnt 3423, 164 D.L.R. (4th) 176, 66 O.T.C. 161. Available on line at http://www.canlii.org/eliisa/highlight.do?text=banton+cullity&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/on/onsc/doc/1998/1998canlii14926/1998canlii14926.html

FN2 http://www.statcan.gc.ca/pub/85f0033m/85f0033m2001008-eng.pdf
FN3 http://www.torontopolice.on.ca/crimeprevention/elderabuse.php

Elder Abuse in Ontario

March 25, 2010 in Court Appointed Guardians of Property and of Person, Elder Law, Estate Litigation, Executors / Trustees, Passing of Accounts and Executor's Fees, Retirement and Removal of Trustees, Unjust Enrichment, Constructive Trust and Quantum Meruit Claims in Estates by Charles Wagner | 11 comments

There may be as many as 150,000 seniors being victimized in Ontario.(FN1) The elder abuse can take many forms. One common form of elderly abuse is financial. The purpose behind this blog is to provide some information to people on the first steps they might consider when discovering the problem. Let’s first talk about signs of financial elder abuse.

According to the Toronto Police Service Website(FN2) these are some signs to watch out for:

Has the Power of Attorney been changed?
Is the elderly person suddenly short of money to pay for living expenses?
Has the elderly person been brought to sign legal documents they say they don’t understand?

Another red flag of financial abuse of the elderly occurs when large gifts or transfers of money take place. It is normal for children to become joint account holders in order to help parents pay their bill. However, it is suspicious for large chunks of cash to be transferred out of the joint accounts as gifts or expenses unrelated to the real owner of the account. Often the powers of attorney say that their elderly parent gave them this money as a gift. That might be true – but then again one must ask if there was there pressure placed on an elderly vulnerable person to make that gift? The common law(FN3) and Ontario’s Substitute Decisions Act(FN4) makes it very clear that a Power of Attorney is a fiduciary. What that means is that the power of attorney has undertaken to do things on behalf of a potentially vulnerable person and must act exclusively for the benefit of that person putting his interests totally aside. Taking money from an elderly person who is relying on that power of attorney may go against that Power of Attorney’s duty to act diligently, with honesty and integrity, and in good faith for the donor’s benefit. (FN5)

Options if you suspect Elder Abuse In Financial Matters

Call the Police. The Toronto Police Services Unit has a web site(FN6) which describes their efforts. Their contact numbers for a non emergency is 416 808 7040. For an emergency it is 411. The problem is that while the provincial government recognizes that the financial abuse of the elderly is horribly wrong, it is not always viewed as a crime(FN7). Furthermore, the police will sometimes view accusations against a power of attorney as a family dispute not warranting police charges.

Call the Office of the Public Guardian and Trustee (FN8). In the context of my practice I have dealt with the Public Guardian and Trustee a lot. They are altruistic and genuinely interested in helping the elderly. The problem is that they are under resourced and view themselves as a last resort. If they are convinced that it is a very serious financial abuse of an elderly person they will investigate a report that a mentally incapable person has been victimized and apply to court to become the abused elderly persons Temporary Guardian of Property. To report this type of serious abuse you can call the OPGT at 416 327 6348.

Educate yourself on Elder Abuse issues and get Legal Help. An excellent place to start is with the Advocacy Centre for the Elderly (ACE) a community based legal clinic for low income senior citizens. They have an excellent website which will be helpful (http://www.acelaw.ca/) and the lawyers at will talk to people on the phone and if more than a phone call is necessary they may make an appointment. Their phone number is 416-598-2656.

Hire a Lawyer and seek an accounting. Powers of Attorney have to keep records and receipts of all money they received on behalf of the person under their care(FN9). They also have keep records of the money spent. If you believe an elderly person is being financially abused write down all the facts you are relying upon to support that belief. The lawyer you hire will want to know:

Who is the power of attorney for property?

Who has control over the elderly person?

What is your relationship to that elderly person?

This last point is very important because under the Substitute Decisions Act, the Power of Attorney must keep accounts of all transactions involving property. The courts take this duty very seriously. The court may, on application order that the attorney have to pass his accounts.

But who may apply to the court? The elderly person in question, A dependant of the elderly person, The Public Guardian and Trustee, The Children’s Lawyer, A judgment creditor of the elderly person and Any other person who seeks and obtains permission of the court to apply.

If a court has found that the power of attorney abused their position the court can remove him/her, appoint a new guardian of person. If that Power of Attorney has been unjustly enriched at the expense of the elderly person then the court may order restitution. Now it may be impossible to recover the asset taken in its original form and the court may provide a tracing order

If you need a lawyer it is always a good idea to ensure that the person you hire has expertise in the area. If you do not know someone like that you can contact the Lawyer Referral Service provided by the Law Society of Upper Canada at http://www.lsuc.on.ca/public/a/faqs—lawyer-referral-service/

It would be a mistake to treat this blog as substantive legal advice. For those considering commencing an application to compell an accounting, there is no substitute for hiring a competent lawyer whose own research, analysis and judgment should be canvassed.

Here are some resources which may be of assistance:

Ontario Ministry of the Attorney General website. See the section on Elder abuse: http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/criminal_law.asp#elder
Advocacy Centre for the Elderly: http://www.acelaw.ca/services.php
Public Health Agency of Canada website. This discusses the financial abuse of the elderly and possible ways to stop it. http://www.phac-aspc.gc.ca/ncfv-cnivf/publications/agefinancialab-eng.php
Ontario’s Seniors’ Secretariat http://www.culture.gov.on.ca/seniors/english/programs/elderabuse/

FN1 http://www.onpea.org/english/contactus/stategytocombatelderabuse.html

FN2 http://www.torontopolice.on.ca/communitymobilization/elderabuse.php

FN3 http://www.cbwagnerlaw.com/pdf/put_your_own_interests_aside.pdf

FN4 http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_92s30_e.htm

FN5 See section 32(1) of the Substitute Decisions Act which provides “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.”

FN6 http://www.torontopolice.on.ca/communitymobilization/elderabuse.php

FN7 http://www.onpea.org/english/contactus/stategytocombatelderabuse.html Note that certain financial abuse can be a crime. For example, theft, fraud, forgery and extortion are criminal offences.

FN8 See a very good article “Elder Abuse: The Hidden Crime” by ACE which is the Advocacy Centre for the Elderly and Community Legal Education Ontario (CLEO) at http://www.cleo.on.ca/english/pub/onpub/PDF/seniors/elderab.pdf

FN9 The duty to account is set out in the Substitute Decisions Act. There are regulations which set out how these accounts must be maintained. Please see ONTARIO REGULATION 100/96 ACCOUNTS AND RECORDS OF ATTORNEYS AND GUARDIANS http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_960100_e.htm