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"SO WHAT DOES THE PUBLIC GUARDIAN AND TRUSTEE DO ANYWAY?" J . . ) . . . . These materials were prepared by Ronald Kruzeniski, QC, Public Guardian and Trustee of ') Saskatchewan, Regina,Saskatchewan for the Saskatchewan Legal Education Society Inc. seminar, Advising the ElderlyClient; 2003. . -,.'

SO WHAT DOES THE PUBLIC GUARDIAN AND TRUSTEE DO ANYWAY? - Law Society of Saskatchewanlibrary.lawsociety.sk.ca/inmagicgenie/documentfolder/ac... · 2009-10-30 · "SO WHAT DOES THE

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"SO WHAT DOES THE PUBLIC GUARDIAN ANDTRUSTEE DO ANYWAY?"J . .

)

. .. .

These materials were prepared by Ronald Kruzeniski,QC, Public Guardian and Trustee of') Saskatchewan, Regina,Saskatchewan for the Saskatchewan Legal Education Society Inc. seminar,

Advising the Elderly Client; Sep~ember 2003. .-,.'

"\ )

)

2

TABLE OF CONTENTS

I.

II.

III.

IV.

VI.

VII.

Introduction

Elder Financial Abuse

What does the Public Guardian and Trustee do?

What does the PGT do when served with an application for guardianship under The

Adult Guardianship and Co-decision-making Act?

When will the PGT act under The Adult Guardianship and Co-decision-making Act?

What does the PGT do in relation to accountings by property guardians under The

Adult Guardianship and Co-decision-making Act?

What does the PGT do when served with a notice under The Public Guardian and

Trustee Act?

)

VIII. What does the PGT do when asked to direct an accounting under The Powers of

Attorney Act?

IX. What does the PGT do when staff receive complaints about financial abuse?

X. What would the PGT like to do about complaints of financial abuse?

XI. Conclusion

3

"SO WHAT DOES THE PUBLIC GUARDIAN AND TRUSTEE

DO ANYWAY?"

I. INTRODUCTION

When I was appointed Public Trustee in 1995 and I would walk down 12th Avenue in Regina,

people would stop to chat and they would of course ask, "What are you doing now?" I would

reply that, "I am the Public Trustee." I would either be confronted with silence or, "Oh yes, I

have dealt with your Office before." Both reactions made me apprehensive. If they had dealt

with the Office, was it a pleasant experience or otherwise?

If it was silence, were they upset with our Office, or did they just not know what we did? Were

they thinking, "So what does the Public Guardian and Trustee do anyway?" I have learned since

that time many are thinking, "So what does the Public Guardian and Trustee do anyway?"

This paper is an attempt to partially answer that question. I say partially because the seminar

focus is elder law and not laws relating to children and deceased estates. Thus, I will narrow the

scope of the question to, "What does the Public Guardian and Trustee do, that affects elder

persons in Saskatchewan?"

The mandate ofthe Public Guardian and Trustee (PGT) is as follows:

• administering the property and finances of adults who are incapable of managing their

financial affairs;

• protecting property rights of children under 18;

• administering the affairs of deceased persons; and

• holding and administering unclaimed property.

Some basic information regarding our Office is as follows:

• As ofMarch 31, 2003, the PGT provided services to:

4

Adults where the office administers finances 1,392

Adults where the office may monitor 1,306

Children for whom we hold funds 2,255

Children whose property rights we monitor 1,688

Estates of deceased persons 688

Total 7,312

• As of March 31, 2003, the Office held assets III trust for clients III the amount of

approximately $125 million.

• The rate of return realized for clients with money held by the PGT was:

for the six months ending September 30, 2002, an annualized average rate of 4.31

per cent.

for the six months ending March 31, 2003, an annualized average rate of3.61 per

cent.

The 5-year average rate ofreturn is 10.45 per cent.

The 10-year average rate ofreturn is 10.67 per cent.

II. ELDER FINANCIAL ABUSE

Financial abuse of elders is a serious problem in our society. It is one of many problems in our

society that are not talked about. It affects our mothers and fathers, grandfathers and

grandmothers, brothers and sisters and our children. We do not know how pervasive the

problem is. If you are the one being abused you may feel ashamed, or you may be fearful of the

consequences if you blow the whistle. Where will you live and who will help you with the

things you need done?

If you are the person getting the financial benefit, you won't want to admit it. You may be

committing a criminal offense, or if you admit to abuse, the source of funds may be cut off, your

family members may tum against you or sue you.

5

We may be experiencing a conspiracy of silence. You can ask health care workers, police

officers, social workers, staff in financial institutions or the staff of our Office, as to whether

elder abuse is occurring in our society and they will tell you that financial abuse of seniors is

gomgon.

The demographics of our province and country would suggest we might see more of it. Our

society is aging and the baby boomers are getting older. Our health system allows us to live

longer. Some of us may outlive our children. As you get older, there may be fewer and fewer

family members to help you out. The ones remaining may be nieces and nephews, cousins or

more distant relatives. The temptation may be there to get your estate sooner.

Attached to my paper is a paper entitled Investigation of Financial Abuse of Older Persons in

Saskatchewan: Recommendations for Guidelines prepared by Max Bilson of the Department of

Justice. This paper canvasses the research on the causes of elder financial abuse and the data

available as to the extent of the problem.

Ifwe assume that approximately 2% of elderly people will suffer some form of financial abuse in

any given year, then Saskatchewan could have at least 3,000 cases of financial abuse of the

elderly annually. I believe that should concern all ofus.

Appendix "A" (attached) outlines four cases that have occurred in our Office. These are real

cases. They involve real people who are real victims. We receive similar cases on a weekly

bases. In fact, it seems like the cases get uglier and uglier.

The potential of financial abuse in our society and the real impact on human beings when it

occurs causes me to be extremely concerned about this issue. In fact, when I see it happening in

real life, I get angry. I have made it a goal in my career, as Public Guardian and Trustee, to

prevent it from occurring wherever possible. It is with that background, that I proceed to address

the title of this paper. I thought it important for each of you to know my concern with this

serious social problem, so that you might better understand some of the positions taken by our

Office.

6

III. WHAT DOES THE PUBLIC GUARDIAN AND TRUSTEE DO?

This seminar is aimed at giving all of us a better idea of what the laws are in relation to elder

persons. You will hear in this seminar, the general law on property guardianship, power of

attorney and financial planning. This paper is to fill in the gaps and provide you with an idea as

to how the PGT fits in those areas of law. For the rest of this paper we will pose a number of

questions asking, "What does the PGT do?"

IV. WHAT DOES THE PGT DO WHEN SERVED WITH AN APPLICATION FOR

GUARDIANSHIP UNDER THE ADULT GUARDIANSHIP AND CO-DECISION­

MAKING ACT!

The Adult Guardianship and Co-decision-making Act provides as follows:

35(1) The court may, where it considers it appropriate:(a) dispense with service on all or any of the persons mentioned inclauses 3I(1)(a) to (i);(b) vary the time for filing a statement of objection pursuant to section 32 or fornotification of any person pursuant to section 33; or(c) at any time, order that any person who, in the opinion of the court, has asufficient interest in the financial welfare of the adult be served with anapplication or a statement of objection or be notified of a hearing pursuant to thisPart.

(2) Notwithstanding clause (1)(a), the court shall not dispense with service on theadult unless it is satisfied, on the basis of sufficient medical evidence, that specialcircumstances exist and service would be injurious to the adult and contrary to thebest interests of the adult.

36 The public guardian and trustee, on being served with an application, shall:(a) review the matter; and(b) provide information respecting the application to any prescribed advocacygroup:

(i) that is currently involved in the affairs ofthe adult;(ii) that the adult requests be provided with the information; or(iii) whose involvement the public guardian and trustee considerswould be in the best interests of the adult.

37 The public guardian and trustee, on being served with an application or a

7

statement of objection or being notified of a hearing, may do anyone or more of thefollowing:(a) contact the adult and determine whether he or she wishes to berepresented in the application;(b) contact the applicant or any person filing a statement of objection todiscuss the application or statement ofobjection;(c) inform any relatives of the adult who have not been served pursuant tosection 31 about the application, statement of objection or hearing;(d) provide information about the application, statement of objection orhearing to an agency that provides health care or other services to or for the adult;(e) engage a lawyer to represent the adult in the application;(f) intervene and make representations in the application;(g) make inquiries about whether any person acts as a trustee for the adult;(h) do any other thing that the public guardian and trustee considersappropriate.

When served with an application under The Adult Guardianship and Co-decision-making Act,

the PGT has certain things it must do and certain things it has discretion to do. The Office must

review the application and provide information to prescribed advocacy groups, if certain

conditions are met. The regulations prescribe the following groups:

Family and Friends of Cosmo and Elmwood, Inc.

Saskatchewan Association of Community Living;

Senior Power, Inc.

The Office can do other things like contact the adult, contact relatives, engage a lawyer for the

adult or make representations to the court. In this paper, when we refer to "adult" we mean the

"vulnerable adult" who is the subject of the application. This is the term used in The Adult

Guardianship and Co-decision-maker Act.

The PGT may take the above steps where circumstances warrant. Because of resources, it is not

possible to do all things in all cases. There are approximately 120 applications for guardianship

in a year. The current practice is to make representations to the court regarding the requirements

for a bond. A written submission is filed with the court (see Appendix "B", Application for

Property Guardianship and Appendix "C", Application for Co-decision-maker). The policy in

the Office is to ask for a bond in all instances. That bond is the adult's protection that his or her

8

financial affairs will be administered properly. It is also an indication to the applicant that his or

her assets are committed to a good and honest administration of the assets.

When people think ofbonds, they think of a commercial surety. Sometimes a commercial surety

is required, but this is not always the case. The applicant can provide a bond himself or herself

with sureties being other family members or individuals (See Form M Bond in The Adult

Guardianship and Co-decision-making Act, Appendix D). Our thinking is that if the family

won't sign as surety for an applicant, then the adult's assets may not be safe in his or her hands.

The written submissions (attached) refer to the recent Queen's Bench decisions on this point.

The court has supported the requirement of a bond.

The section that deals with security is section 55 of The Adult Guardianship and Co-decision­

making Act, which provides as follows:

55(1) A person, other than the public guardian and trustee, who is appointedproperty co-decision-maker or property guardian shall file a bond, in the prescribed form,with the local registrar of the court, undertaking to properly act as property co-decision­maker or property guardian for the adult, with any sureties that the court may require.(2) Unless the court directs otherwise, the bond required by this section is to be inan amount that is equal to or greater than the sworn value ofthe adult's estate.(3) The court may direct that more than one bond be given in order to limit theliability of a surety to an amount that the court considers reasonable.(4) The court may dispense with the filing of a bond pursuant to subsection (1):

(a) where the value of the estate does not exceed a prescribed amount;(b) where the nearest relatives and public guardian and trustee consent inwriting; or(c) in any other situation the court considers appropriate.

The one exception to requiring a bond for the full amount of the adult's estate is when the spouse

is the applicant. A spouse from a long-term relationship will be asked to file a bond with no

sureties for the amount of the estate, provided the children consent. He or she will not be asked

for a statement of assets to support the bond. The reason for the children being required to

consent is to deal with the situation ofprevious marriages or relationships.

9

Where the applicant is out ofprovince, our request will be for a bond from the applicant and for

sureties within the province, for the value of the adult's estate. The reason for this is the

difficulty ofmaking a claim again a person who is not in the province.

If the application is for a temporary property guardianship, the wording of the Act states that a

bond is only required for a property guardian or property co-decision-maker. A temporary

property guardian does not have to file a bond. To date, we have not been asking for a bond for

a temporary property guardian. This temporary appointment can be for six months and if the

estate is sizeable, there is a good argument that there ought to be a bond. We will have to

consider these issues further in the future.

If the application is for a property co-decision-maker, we do ask for a bond from the applicant,

but do not ask for sureties. The reason for this is that the co-decision-maker still has access and

influence over the adult's property.

We ask for a bond equal to the full value of the adult's estate. We include joint property at 50%

value unless the property is in fact, really the property of the adult. If the adult is a beneficiary of

a discretionary trust, the value of the discretionary trust is not included in the value of the adult's

property for bond purposes. If the adult will be receiving a series ofpayments, e.g. an annuity, a

value may be assigned to the income stream for the purpose of valuing the estate in order to

calculate the bond. As an example only one might add 50% of the total income stream to the

bond value. The percentage will depend on the circumstances and the nature of the income

stream.

If the adult is named in a will to receive a bequest, that interest would not be added to the total

assets for the purposes of calculating the bond. But, if a person has died, and the adult has an

interest in the estate, then that interest would be included in valuing the adult's assets.

At the time of application, if the applicant is not aware of property, he or she can at a later date,

file an amended inventory or disclose this in the annual accounting. We would be entitled to ask

for an increase in the bond. Our request would depend on all the circumstances at the time.

10

When we first request a bond, there is a usual assumption that we are talking about a commercial

bond. This is not normally the case. We are asking the applicant to sign a bond for an amount

equal to the value of the adult's estate. If the applicant does not have sufficient assets to support

the bond, then a surety can sign, so that in total there are sufficient assets, to cover the value of

the adult's estate. If one surety cannot do it, then two sureties are okay. Again, these can be

individuals; brothers, sisters, family or friends. If the applicant cannot get an individual surety to

sign, then he or she can approach a surety company to provide a bond. Please note the options

available before it is necessary to consider a commercial surety.

In those instances where a commercial surety is required, there will be a premium. There is a

reaction to paying this premium and an expectation that our Office will readily agree to there

being no bond. The answer is we will require the bond. Working in our Office provides us with

many examples of what loved ones do to their mothers and fathers. The elder persons tend to

trust their family and that trust may be sometimes unfounded. I refer you to the cases referenced

in Appendix "A". There is a great desire on the part of some family members to distribute the

estate before death. After you see this happening over and over again, you take a different view.

If an adult has his or her life savings stolen, then what will that adult live on for the rest of his or

her life? The answer is he or she will have a very basic existence. There may be nothing for the

extras. The bond becomes the protection against that occurring. A premium then looks like a

very cheap price to pay for security.

It should also be noted the cost of the bond is usually charged against the estate and is not an

expense of the applicant.

I would like to suggest that the private bar and the PGT develop an informal practice. Currently,

you serve us with the application, we file our submission requesting a bond, and if the judge

agrees, a fiat is issued, or a suggestion is made that the details of the bond be worked out with the

PGT. The PGT staff member request a statement of assets of the applicant and upon receipt

start to discuss with the lawyer the sureties, the number of sureties and the amount ofthe bond.

11

I would suggest that when working on the file initiallY, the lawyer contact our Office and discuss

the bond. We will ask for a statement of assets of the applicant and proposed sureties. We will

determine the amount of the adult's assets and determine whether a surety is required or not. By

the time the application is ready for filing, the details of the bond will probably have been

worked out. Instead of filing our submission, we will file a letter consenting to the particulars of

the bond. There may be other issues in a particular application that we might object to, but at

least the bond particulars would have been resolved. This is intended to speed up and ease the

process of the application for property guardianship. It goes without saying, if the lawyer thinks

there should be no bond, then this practice will not work and the lawyer should proceed with his

or her application. Mr. Justice Laing made this suggestion in his Sotnikow decision at page 6.

(See Appendix "G")

In a situation where the court requir~s a bond with sureties or a commercial surety and the

applicant can not secure a commercial surety or other sureties, we find the applicant is returning

to court to ask the court to reconsider the order. Weare asked, since the applicant cannot get a

surety, that we should consent to no bond or no sureties. Please be advised we will not consent.

For all of the above reasons, our Office believes the bond and sureties are the only protection the

adult has. In the second court application, our position will be similar to our original position.

We do not consider the applicant's inability to provide a surety to be a good reason to waive our

requirement for a bond.

v. WHEN WILL THE PGT ACT UNDER THE ADULT GUARDIANSHIP AND CO­

DECISION-MAKING ACT!

In some instances, after service of the application, the family members cannot agree that the

applicant be property guardian or cannot agree on an alternate person to be property guardian. In

these instances, the PGT can consent to be property guardian. We find this happens in a good

number of cases. It would be preferable for the family to work things out. For example, two of

them can act as property guardian, or one can act as personal guardian and one as property

guardian. The problem always seems to center around who will have control of the money. I

12

view our Office as a place of last resort. There should be an expectation that family members

can work things out. But, where they can not, our Office is prepared to act.

VI. WHAT DOES THE PGT DO IN RELATION TO ACCOUNTINGS BY

PROPERTY GUARDIANS UNDER THE ADULT GUARDIANSHIP AND CO­

DECISION-MAKING ACT!

The legislation requires the property guardian to provide an annual accounting. The Adult

Guardianship and Co-decision-making Act provides as follows:

54(1) Subject to the regulations, every property co-decision-maker or propertyguardian shall provide an annual accounting of the decisions made, actions takenand consents given respecting the adult to the local registrar of the court and thepublic guardian and trustee, and the property co-decision-maker or propertyguardian shall verify by affidavit the annual accounting required pursuant to thissubsection.(2) The public guardian and trustee may carry out an investigation to ensure theaccuracy of the annual accounting.(3) If a property co-decision-maker or property guardian does not provide anannual accounting pursuant to subsection (1), the public guardian and trustee mayrequest that the court review the order appointing the property co-decision-makeror property guardian, and sections 66 to 68 apply, with any necessary modification, to thereVIew.

Our Office has geared itself up to receive those accountings and examine them when they come

in. We are doing this right now. Where an accounting is inappropriate or insufficient, we can

request further information from the property guardian and carry out an investigation. If the

accounting is totally inappropriate or the property guardian refuses to provide further

information, our Office can apply to the court to have the appointment reviewed. We have not

done this, partly because these provisions are new and secondly, our staff resources are limited.

Over time, where a very serious case warrants it, we will be applying to the court to replace the

property guardian.

Also under the Act, the family members can launch a court application to have the property

guardian replaced.

13

Many orders have been issued under The Dependent Adults Act. Those orders are now subject to

The Adult Guardianship and Co-decision-making Act. Property guardians appointed under The

Dependent Adults Act are therefore required to provide an accounting. If all of them provided an

accounting now, our Office would be swamped, but over time we will be requesting them to

provide an accounting.

VII. WHAT DOES THE PGT DO WHEN SERVED WITH A NOTICE UNDER THE

PUBLIC GUARDIANAND TRUSTEE ACT?

The Public Guardian and Trustee Act provides as follows:

42(1) On every application to the court for probate of a will or letters ofadministration, or for resealing thereof, where an infant or dependent adult isinterested in the estate of the deceased person or may have a claim against it:

(a) under The Dependants' ReliefAct; or(b) in the case of a dependent adult, under The Family Property Act;a notice in the form prescribed in the regulations shall be filed in duplicate withthe local registrar of the court at the judicial centre at which the application ismade.

(2) On letters probate or letters of administration being granted, the localregistrar ofthe court shall certify on the notice mentioned in subsection (1) the date uponwhich letters issued and shall forward one copy of the notice and a copy of the will in thecase ofprobate or administration with will annexed, to:

(a) the property guardian of any dependent adult named in the notice;(b) the public guardian and trustee where no property guardianis named with respect to a dependent adult in the notice; and(c) the public guardian and trustee where infants are named in the notice.

Form B, of The Public Guardian and Trustee Regulations, 2001, sets out the form that must be

filed along with the application for letters probate or letters of administration (Appendix "E"

Notice). Form 101 in the Rules of Court is similar. Upon receipt, our Office checks for children

or dependent adults. If a dependent adult is listed, we will advise the adult, the estate solicitor or

another related adult that the dependent adult may have a claim under The Dependants' Relief

Act, 1996, or The Family Property Act. If our Office is property guardian for that adult, we will

represent the adult and attempt to negotiate a settlement. If the Office is not property guardian,

we are temporarily without authority and have to make a decision as to whether we will seek to

14

obtain that authority. It is preferred that family members come forward and represent the adult,

as litigation guardian, for the purposes of a dependant's relief application and negotiations.

Alternatively, a solicitor or other person can act as litigation guardian for the adult. When no

one comes forward to act, we are in a difficult situation. The adult needs representation, but no

one is appointed. We often continue negotiations for an adult and suggest what might be

reasonable. We can, if no one else comes forward, get appointed. In order to do this, we need

the co-operation of the family to take the adult for a medical examination. Whether we are

appointed under The Mentally Disordered Persons Act or The Adult Guardianship and Co­

decision-making Act, the process usually starts with a medical examination of the adult. This

requires family assistance in getting the adult to see his or her doctor.

What do we usually ask for? The important question is, "What are the needs of the adult?" If

this can be calculated, then that is what we ask for. If it cannot easily be calculated,

consideration should be given to obtaining a needs assessment. We also look at whether the

adult was treated fairly in comparison to his or her brothers and sisters. If there were four

siblings, then the adult should receive one quarter. This approach works very well for smaller

estates. This rule of thumb allows the adult to receive an amount equal to his or her brothers and

sisters. For larger estates, the 'equal to siblings' test mayor may not reflect actual needs. It may

be necessary to focus on the actual needs and have a professional assessment.

A concern is always social assistance payments. The Dependants' ReliefAct, 1996 was amended

in 1997 to provide:

9.....(2) Subject to subsections (3) to (7), the court may order the establishment of atrust fund for a dependant for the purpose ofpaying an allowance:

(a) to help the dependant achieve independence;(b) to meet the special needs of the dependant;(c) to provide occasional gifts to the dependant; or(d) to do all or any combination of the things mentioned in clauses (a) to (c).

(3) In determining the amount of an allowance that may be paid to a dependant,the court shall consider that any assistance provided to or on behalfof thedependant pursuant to The Saskatchewan Assistance Act and any other similarassistance programs fund by the Government of Saskatchewan will continue to beprovided to the dependant.

15

(4) The capital of and income from a trust fund is not to be considered as an assetor income of the dependant for the purpose of determining the dependant'seligibility for assistance pursuant to The Saskatchewan Assistance Act or any othersimilar assistance program funded by the Government ofSaskatchewan.(5) If there is no other suitable person to be appointed as trustee and the publicguardian and trustee consents to be appointed, the court may appoint the publicguardian and trustee as trustee for a trust fund.(6) If the public guardian and trustee is appointed as trustee of a trust fundpursuant to subsection (5), the public guardian and trustee may charge the samefee for administering the trust fund that the public guardian and trustee couldcharge pursuant to The Public Guardian and Trustee Act for performing similarservices respecting the property of a dependent adult.(7) The Lieutenant Governor in Council may make regulations limiting theamount of a trust fund.

This allows the adult to have a trust established without having his or her social assistance

payments reduced.

The Dependants' ReliefTrust Fund Regulations have been amended to allow for a trust fund of

up to $100,000, which will not have an impact on social assistance payments.

This allows the establishment of a fairly considerable trust fund. There is one concern, and that

is that the adult may end up with a nest egg, which he or she will never spend, and when he or

she dies the family will get it. It is important that this trust fund be spent on the adult, or at least

a reasonable portion of it. Our Office will be asking that the trustee be someone who does not

have an interest in keeping the trust fund large, in other words, no conflict of interest. The

executor in many instances is a family member and may benefit from the money not being spent.

Our Office will want to see a trustee that feels free to spend the trust funds. Other provinces

have insisted that the income be spent every year and that at least 2% of the capital be spent on

the adult each year. You can expect our Office to start asking in negotiations, for the income to

be spent annually.

If there is a claim under The Family Property Act, then our office would consider an equal

division of property to be appropriate unless there are circumstances that would suggest ad. Vl::510 ()

different yaluatlOn would be in order. This would be a matter of negotiation and if need be a

court application.

16

As I have suggested above, in many instances the dependent adult has no property guardian. Our

Office then tries to encourage a family member to act. The family member can be appointed

litigation guardian. Alternatively, the POT can be appointed litigation guardian. Our Office

should always be viewed as the place of last resort.

How do we get appointed litigation guardian? Section 32 of The Public Guardian and Trustee

Act, 2001 provides as follows:

32(1) Where it is necessary to serve any court process on a person who may be ofunsound mind and who has no property decision-maker, whether or not that person is adependent adult, the person seeking to effect service may make an application to thecourt, and the court may direct that service be effected by delivering a copy of theprocess to the public guardian and trustee or to any other person the court considers to besuitable.(2) The public guardian and trustee or the person directed to be served pursuantto subsection (1) shall act as litigation guardian ofthe person alleged to be ofunsound mind:

(a) in the case of the public guardian and trustee, after 30 days from the date ofthe order made pursuant to subsection (1);(b) in the case of any other person directed to be served, from the dateservice of the court process is effected;

unless the court otherwise directs.

The Rules of Court also provide for the appointment of a litigation guardian. Rule 46 authorizes

this and the Queen's Bench Rules in the annotations suggest the criteria, the evidence required

and the procedure. (Appendix "F")

The important thing here is to ensure that a person who is not able to represent himself or herself

is represented. It is best if it is a family member, but the POT is prepared to act if no one else is

willing or able to do so. Because a vulnerable adult is in a situation that impacts other family

members, conflict of interest is a concern as is undue pressure by family members on the

vulnerable adult. Our job here is to ensure representation and seek fair settlement.

VIII. WHAT DOES THE PGT DO WHEN ASKED TO DIRECT AN ACCOUNTING

UNDER THE POWERS OF ATTORNEYACT!

17

The Powers ofAttorney Act, which was proclaimed April 1, 2003 provides as follows:

18(1) On the request of the grantor, the attorney shall provide an accounting tothe grantor.(2) lithe grantor lacks capacity, an accounting may be requested by:

(a) a person named by the grantor in the enduring power of attorney; or(b) if no person is named pursuant to clause (a), an adult family member of thegrantor.

(3) lfthe grantor or a person mentioned in subsection (2) has been unable toobtain an accounting from the attorney, he or she may request the public trustee todirect the attorney to provide an accounting.(4) Any interested person may request the public trustee to direct the attorney toprovide an accounting.(5) The public trustee may direct the attorney to provide an accounting if:

(a) on receipt of a request pursuant to subsection (3) or (4), the public trusteeconsiders it appropriate to do so; or(b) the public trustee considers it to be necessary and in the public interest to doso.

(6) lfthe public trustee does not direct the attorney to provide an accountingpursuant to subsection (5), or the attorney does not provide an accounting asdirected by the public trustee, the court may direct the attorney to provide anaccounting to the court or to the public trustee on application of:

(a) the grantor;(b) any person mentioned in subsection (2) or (4); or(c) the public trustee.

When the PGT is asked to request an accounting, we first determine whether the person asking is

capable of doing that on his or her own. If they are, then we expect he or she will, as a family

member, make that request.

Before directing an accounting, the PGT would ask for:

A written request to the PGT to direct an accounting;

A copy of the enduring power of attorney;

A copy of the letter of the grantor or family member making the request for the

accounting;

Some evidence (information) that the grantor is no longer capable of making the

request himselfor herself.

18

This is a new area for us and our requirements will change as we use section 18. Staff resources

in the office will also determine the extent to which we can be involved in this very important

area.

XI. WHAT DOES THE PGT DO WHEN STAFF RECEIVE COMPLAINTS ABOUT

FINANCIAL ABUSE?

When staff receive complaints of financial abuse, we attempt to provide as much information as

we can to the caller. Some of the advice might include:

encouraging the vulnerable adult to see a lawyer to obtain legal advice;

revoking an existing power of attorney;

consideration of an application for temporary guardianship or full guardianship

under The Adult Guardianship and Co-decision-making Act;

reporting the matter to the police to determine whether a criminal offense has

been committed;

contacting other family members, so that all concerned are aware of the situation;

taking the vulnerable adult to a physician for an examination to trigger section 38

of The Mentally Disordered Persons Act. This process would result in a

Certificate of Incompetence, which would allow the PGT to act;

applying under section 19 of The Mental Health Act, which allows the issuing of a

warrant, so that a vulnerable adult can be taken for a medical examination;

making a request for an accounting under section 18 of The Powers ofAttorney

Act;

if there IS a property guardian, consider an application under The Adult

Guardianship and Co-decision-making Act, to remove the property guardian.

if there is a property guardian, consider making a request for an accounting under

The Adult Guardianship and Co-decision-making Act.

We like to receive your telephone calls regarding concerns about financial abuse. Even though

our powers are limited, it is important for us to know where there are serious concerns. In many

cases, we set up a file and monitor the situation. It is surprising from that first initial telephone

19

call how often we end up being involved in some way. In many cases, a family member or the

PGT become property guardian. Our Office considers itself the place of last resort, so it is

always preferred that families become involved and take action, but the Office is there to act

when family will not or cannot.

We also like to receive your calls, so that over time we can determine, on a provincial basis, how

serious things are in relation to financial abuse. In Max Bilson's paper, he has cited some

statistics as to the prevalence of financial abuse in Canada or other countries. I have no doubt

that it is as serious in Saskatchewan.

X. WHAT WOULD THE PGT LIKE TO DO ABOUT COMPLAINTS OF

FINANCIAL ABUSE?

Section 19, not yet proclaimed, of The Public Trustee Amendment Act, 2001 provides as follows:

New sections 40.5 to 40.9

19 The following sections are added before section 41:

"Freezing of funds by financial institution"40.5(1) In this section and in sections 40.6 to 40.9:

(a) 'financial abuse' means the misappropriation of funds, resources orproperty by fraud, deception or coercion;

(b) 'record' means a book, paper, document or thing, whether inelectronic form or otherwise, that may contain information respecting thefinances of a vulnerable adult;

(c) 'vulnerable adult' means an individual, 16 years of age or more, whohas an illness, impairment, disability or aging process limitation thatplaces the individual at risk of financial abuse.

(2) A financial institution may suspend the withdrawal or payment of funds froma person's account for up to five business days where the financial institution hasreasonable grounds to believe that the person is a vulnerable adult and:

(a) is being subjected to financial abuse by another person, including aperson appointed as his or her property decision-maker pursuant to TheAdult Guardianship and Co-decision-making Act; or

20

(b) is unable to make reasonable judgements respecting matters relating tohis or her estate and that the estate is likely to suffer serious damage orloss.

(3) The financial institution shall immediately advise the public guardian andtrustee of the suspension, the reasons for the suspension and any financialinformation held by the financial institution respecting that person.

(4) Where the withdrawal or payment of funds has been suspended pursuant tosubsection (2), the financial institution may allow certain payments to be madewhere it is of the opinion that it is appropriate to do so.

(5) A financial institution acting pursuant to this section is not in breach of anyother Act.

"Freezing of funds by public guardian and trustee"40.6(1) The public guardian and trustee may require a financial institution tosuspend the withdrawal or payment of funds from a person's account for up to 30days and may require that the financial institution provide the public guardianand trustee with any financial information held by the financial institutionrespecting that person where:

(a) the public guardian and trustee has reasonable grounds to believe thatthe person is a vulnerable adult; and

(b) the public guardian and trustee receives an allegation that the person:

(i) is being subjected to financial abuse by another person,including a person appointed as his or her property decision-makerpursuant to The Adult Guardianship and Co-decision-making Act;or

(ii) is unable to make reasonable judgments respecting mattersrelating to his or her estate and that the estate is likely to sufferserious damage or loss.

(2) Where the withdrawal or payment of funds has been suspended pursuant tosubsection (1), the public guardian and trustee may authorize the financialinstitution to allow certain payments to be made where the public guardian andtrustee is of the opinion that it is appropriate to do so.

(3) A financial institution acting pursuant to this section is not in breach of anyother Act.

21

"Authority to investigate"40.7(1) The public guardian and trustee may investigate an allegation that aperson the public guardian and trustee has reasonable grounds to believe is avulnerable adult:

(a) place money received by the public guardian and trustee pursuant tothis Act, any other Act or court order in a common fund; and

(b) is unable to make reasonable judgments respecting matters relating tohis or her estate and that the estate is likely to suffer serious damage orloss.

(2) In an investigation pursuant to subsection (1), the public guardian and trusteemay:

(a) at any reasonable time, examine any record, whether in the possessionof the person believed to be a vulnerable adult or any other person; and

(b) request any person to provide any information and explanations thepublic guardian and trustee considers necessary to the investigation.

(3) If requested to do so by the public guardian and trustee, a person shall makeavailable any record or shall provide the information and explanations mentionedin clause (2)(b).

(4) The public guardian and trustee may specify a reasonable time within whicha person shall comply with subsection (3).

"Copies of records"40.8(1) Where a record has been examined pursuant to section 40.7, the publicguardian and trustee may make copies of that record.

(2) A record certified by the public guardian and trustee to be a copy madepursuant to this section:

(a) is admissible in evidence without proof of the office or signature ofthe public guardian and trustee; and(b) has the same probative force as the original record.

(3) The public guardian and trustee shall ensure that after a copy of any recordexamined pursuant to section 40.7 is made, the original is promptly returned to:

(a) the place from which it was removed; or

(b) any other place that may be agreed to by the public guardian andtrustee and the person who was in possession of the record.

22

"Warrants"40.9(1) Where the public guardian and trustee requires the production of anyrecord and the person from whom the record is required refuses or neglects toproduce it, the public guardian and trustee may apply ex parte to a justice of thepeace or a judge of the Provincial Court for a warrant authorizing the publicguardian and trustee or a person named in the warrant to:

(a) enter and search any premises named in the warrant for the record thatthe person refused or neglected to produce; and

(b) seize and take possession of the record.

(2) A justice of the peace or judge of the Provincial Court, if satisfied on oath ofthe public guardian and trustee that he or she has required production of a recordand the person from whom production was required has refused or neglected toproduce that record, may issue the warrant".

Section 19 is not yet proclaimed. Upon its proclamation, the PGT will have the authority to

commence an investigation of allegations of serious financial abuse and freeze bank accounts

until the facts become clear. This legislative provision will certainly assist in the fight against

financial abuse.

In Max Bilson's paper, he has made recommendations regarding the procedures that we would

follow when we receive a complaint of financial abuse. These recommended steps have not been

approved because the legislation has not been proclaimed, but it gives you an idea ofwhat would

be involved in investigating financial abuse. This is what we would like to do.

XI. CONCLUSION

When I told my Administrative Assistant the title of the paper: "So What does the Public

Guardian and Trustee Do Anyway", she laughed and said that is the most frequent question she

gets when she tells people where she works. Our staff run into this question all the time. I hope

this paper may have assisted you in determining what our Office does. We are proud of the work

we do for and with citizens of Saskatchewan and that includes many senior citizens. Our goals

over the next three years are to make a major dent in the serious problem of elder financial

abuse. I invite each one ofyou to join us in this crusade.

INVESTIGA TION OF FINANCIAL

ABUSE OF VULNERABLEADULTS

IN SASKA TCHEWAN:

RECOMMENDATIONS FOR

GUIDELINES

Regina and Saskatoon, September 18-19, 2003

CONTENTS

I. Introduction 3

II. Background 31. The Abuse of Vulnerable Adults in Canada 3

a) Vulnerable Adults in Canada 3b) Abuse ofVulnerable Adults Defined , 5c) The Causes ofAbuse of Older Persons and the Characteristics of the

Abusers and the Abused 5d) The Prevalence ofthe Abuse of Older Persons in Canada 7e) Abuse of Other Vulnerable Adults 9

2. Legislation Concerning Financial Abuse of Vulnerable Adultsin Canada 9

a) Alberta 10b) British Columbia 10c) New Brunswick 11d) Nova Scotia 11e) Ontario 12f) Prince Edward Island 12g) Quebec 13h) Saskatchewan 13

III. Analysis 14a) Initial Assessment 15b) Secondary Assessment 16c) Case Management 19

IV. Options 20

Appendix - Guidelines 22

2

I. INTRODUCTION:

In 2001, Saskatchewan passed The Public Trustee Amendment Act, 2001, but did notproclaim section 19 into law. Among other things, section 19 permits the Office of thePublic Guardian and Trustee to investigate the suspected financial abuse ofvulnerableadults in the province. The Public Trustee Amendment Act, 2001 defines both financialabuse and the powers of investigation of the Public Guardian and Trustee. I

The Public Guardian and Trustee has initiated this review in order to formulate guidelinesfor the investigation of financial abuse ofvulnerable adults in Saskatchewan. Due tostrained resources, the Public Guardian and Trustee will not be able to investigate allcases. This report's objective is to create guidelines that are as effective in combatingserious financial abuse as possible within the resources of the Public Guardian andTrustee, while respecting the rights ofvulnerable adults.

All human beings have juridical rights, and all capable people may assert these rights asthey see fit. Any policy for vulnerable adults must be founded on assistance forvulnerable adults where needed, while still respecting their rights when possible orpractical.

II. BACKGROUND:

1. The Abuse of Vulnerable Adults in Canada

a) Vulnerable Adults in Canada

It is now a truism to state that the Canadian and Saskatchewan populations are aging.The median age of Saskatchewan's population according to the 2001 Census was 36.7years, 13% higher than the median age in Saskatchewan of32.6 years in the 1991 Censusand slightly lower than the median age of 37.6 years for Canada as a whole in 2001.2

Among the provinces, Saskatchewan had the highest percentage of those aged 65 or olderin 2001 at 15.1%, an increase of 1.3% over 1996.3 The population aged 80 and over rose32% in Saskatchewan between 1996 and 2001.4

The elderly population in Canada is expected to grow even more over the next twentyyears. Health Canada estimates that 19.5% of Saskatchewan's population will be aged 65

1 The Public Trustee Amendment Act, 2001, S.S. 2001, c. P-43.1, s. 19.2 Statistics Canada, Profile ofthe Canadian Population by Age and Sex: Canada Ages (Ottawa: StatisticsCanada, 2002) at 22.3 Ibid., at 30; Statistics Canada, Age and Sex, Percentage Change (1996-2001) for Both Sexes, for Canada,Provinces and Territories - 100% Data Table, online: Statistics Canada Website<http://www12.statcan.ca/english/censusOl/products/highlight/AgeSex/Page.cfm?Lang=E&Geo=PR&View=1&Code=0&Table=3a&StartRec=1&Sort=2&B 1=Change&B2=Both>.4 Profile ofthe Canadian Population by Age and Sex, supra note 2 at 23.

3

and older in 2021.5 This will put increasing pressure on health and other resourcesdirected at older persons. It will also increase the number of incapacitated adults. In2003, the Heart and Stroke Foundation estimates that 300,000 Canadians are living withthe after-effects of stroke, and the Saskatchewan Stroke Research Centre estimates that1,400 people a year survive a stroke in the province and live with the after-effects. TheAlzheimer Society of Canada, meanwhile, states that 238,000 Canadians haveAlzheimer's.6 These numbers will likely rise in the near future.

Only 5% of older persons lived in institutions in 2001 (see Figure 1). 35% of olderpersons lived alone in a domestic setting, 37% with a spouse and 13% with children.7

The number of older persons with serious and chronic health conditions living ininstitutions may rise, however, in the near future.

Figure 1: Living Arrangements of Canadian Seniors - 2001 Census

13

3735

40

35

30

... 25~() 20~

p.. 15

I~ +---~"",----,--~""",,,--.-------,I"-"-·.e.t:.t.·",-.----.----,",%%"",-0.........----.------"'-~~""""'"j:'___,Alone Spouse Children Institution Other

Source: Statistics Canada. 200 I Census

The mentally and physically disabled population is harder to estimate. The mentally andphysically disabled population could range from 15-30% of the whole population of aregion or jurisdiction, depending on the definition of disability used, the overall health ofthe population and other socio-economic and demographic factors.

5 Health Canada, Canada's Aging Population (Ottawa: Public Works and Government Services, 2002) at 7.6 See Heart and Stroke Foundation, "General Info - Stroke Statistics," online: Heart and Stroke FoundationWebsite <http://wwl.heartland.. .Ipage.asp?PageID=33&ArticleID=428&Src=stroke&From=SubCategor>;Alzheimer Society of Canada, "Research Update," online: Alzheimer Society of Canada Website<http://www.alzheimer.ca/pfv.cgi?doc=english%2Fresearch%2Fupdate03.htrn&top=%2Fenglish%2Fresearch%2Fupdate>.7 Canadian Centre for Justice Statistics (CCJS), Family Violence in Canada: A Statistical Profile, 2003(Ottawa: Statistics Canada, 2003) at 21 [hereinafter Family Violence in Canada, 2003].

4

b) Abuse ofVulnerable Adults Defined

There are four basic types of abuse of older persons and vulnerable adults:• Physical abuse;• Psychological and verbal abuse;• Neglect; and• Financial misappropriation or theft.8

The Public Guardian and Trustee Act, 2001 defines "financial abuse" as, "themisappropriation of funds, resources or property by fraud, deception or coercion."9

c) The Causes ofAbuse ofOlder Persons and the Characteristics ofthe Abusers andAbused

As one recent study stated, "[t]he lack of a good understanding of abuse of older personsand its consequences is worrisome."IO Recent research into the causes and symptoms ofphysical/psychological abuse and neglect of the elderly has shown no definitive causationnor any definitive characteristics of the abused or abusers, but has established itscomplexity. 11 There is no consensus on the causes of, or solutions for, abuse of olderpersons or on the characteristics of the abusers or abused. We can only speak ingeneralities and tendencies.

Most physical abuse is perpetrated by a family member, often a spouse, and is often partof an ongoing history of inter-generational or spousal violence and abuse within afamily. 12 Women are more likely to be abused by a family member. In 2001, 38% of allolder female victims and 21 % of older male victims were victims of family violence. 13

8 Lynn P. McDonald et. aI., Elder Abuse and Neglect in Canada (Toronto: Butterworths, 1991) at 3-4[hereinafter Elder Abuse and Neglect in Canada]; Donald Poirier and Norma Poirier, Why is it so Difficultto Combat Elder Abuse and, in Particular, Financial Exploitation ofthe Elderly? (Ottawa: LawCommission ofCanada, 1999) at 8-14 [hereinafter Poirier and Poirier]; and, National Center on ElderAbuse, The National Elder Abuse Incidence Study: Final Report (Washington: U.S. Department of Healthand Human Services, 1998) at 3-3 [hereinafter National Elder Abuse Incidence Study].9 Public Guardian and Trustee Amendment Act, supra note 1.10 National Institute of Justice, Results From an Elder Abuse Prevention Experiment in New York(Washington: National Institute of Justice, 2001) at 1.11 Ibid. One recent study has also noted that abuse of older persons is changing as society changes: "Socialand economic changes, changes to family structures and the increasing presence of women in the paid workforce will influence the social environment for older people, and hence, in turn, change the pattern andprevalence of elder abuse." See Freemasons Centre for Research Into Aged Care Services, Elder Abuse inWestern Australia: Report ofa Survey Conductedfor the Departmentfor Community Development (Perth,WA: Curtin University of Technology, 2002) at 5 [hereinafter Elder Abuse in Western Australia].12 See CCJS, Family Violence in Canada: A Statistical Profile 2002 (Ottawa: Statistics Canada, 2002) at27ff; Poirier and Poirier, supra note 8 at 9; Gerald Bennett and Paul Kington, Elder Abuse: Concepts,Theories and Interventions (London: Chapman and Hall, 1993) at 18-27 [hereinafter Bennett and Kington].13 Family Violence in Canada, 2003, supra note 7 at 23. Older men,conversely, have almost twice the rateof violent victimization by non-family members. Common assault is the most common offence for oldervictims of family violence.

5

One recent report states that, "elder abuse is merely one dimension of domestic violence,which includes the physical and psychological abuse of children and partners.... "14

Physical abuse of and by older people may often result from, "a very deep andpathological relationship between two people," that is ongoing and has not arisenovernight. 15 The abused and abuser may also suffer from psychological problems orpsychiatric illness of long standing. 16

The profile of financial abuse is slightly different. One recent study found that financialabuse is often committed by distant, not close, family members (24% ofthe sample) andnon-family members such as friends, neighbours and acquaintances (40%). Close familymembers such as sons/sons in-law or daughters/daughters in-law committed 29% offinancial abuse in this study, though most (53%) financial abuse is still committed by afamily member of some kind. 17

Financial abuse is not necessarily built on a dependent relationship. Victims may not bemore impaired or isolated. Older women with some level of impairment are more likely,however, to suffer financial abuse. 18 In some cases this is formal, e.g. attorneys orproperty guardians, in others it is informal, e.g. a "friend" or relative who influences anolder person. A "typical" victim of financial abuse may not exist. 19 .

Obviously, financial abuse is often the result ofthe trust the older person places inanother. The older person does not always realize that financial abuse is occurring.

It should also be noted that abuse of older persons has quite dramatic effects on victims.The psychological and physical effects of all kinds of abuse of older persons might havequite serious consequences in terms of life expectancy and overall health. One recentreport found in the United Kingdom that oider victims of burglary are 2.4 times morelikely to die within the next two years than other older persons.20

14 Law Reform Commission ofManitoba, Report on Adult Protection and Elder Abuse (Winnipeg: LawReform Commission of Manitoba, 1999) at 1.15 Bruno M. Cormier, Miriam Kennedy, Jadwiga Sangowicz and Michel Trottier, "The Latecomer toCrime" in Renee Fugere and Ingrid Thompson-Cooper, eds., Breaking the Chains: Bruno M. Cormier andthe McGill University Clinic in Forensic Psychiatry, vol. 2: Papers (Montreal: Robert Davies Publishing,1998) at 45.16 Health Canada, Abuse and Neglect ofOlder Adults: A Discussion Paper (Ottawa: NationalClearinghouse on Family Violence, 2000) at v [hereinafter Abuse and Neglect ofOlder Adults].17 Poirier and Poirier, supra note 8 at 14.18 National Elder Abuse Incidence Study, supra note 8 at 4-14. See also, Administration on Aging, Findings- Incidence ofAbuse and Neglect ofthe Elderly, online: AOA Homepage<http://www.aoa.gov/abuse/report/GFindings-03.htm>. tables 4-24, 4-25 and 4-26; and, Elder Abuse inWestern Australia, supra note 11 at 20 and 26.19 Abuse and Neglect ofOlder Adults, supra note 16 at v.20 United Kingdom Home Office, "Experiences of Older Burglary Victims" (2003) 198 Findings 1 at 1.This discrepancy may also relate to the relative health and welfare of older persons who are likely to beburglarized.

6

d) The Prevalence ofAbuse ofOlder Persons in Canada

While the incidence of abuse ofolder persons is not well known, there have been somestudies of the prevalence of abuse of older persons in Canada and elsewhere. The lack ofa good statistical framework means that we have no idea whether abuse of older personsis increasing or decreasing, whether it is more prevalent in different parts of the countryor among different minority or demographic groups.

There have been a number of surveys of portions of the elderly population in Canada,Australia, the United States and the United Kingdom. These surveys ask a sample ofolder people whether they have suffered abuse, usually in the past year. These studieshave established that between 3-4.5% of those over 65 report being abused in theprevious 12 months.21

As shown in the following chart, a study by Podnieks and Pillemer carried out in 1989found that 2.5% of the 2,000 Canadians aged 65 and over in the survey reported havingsuffered financial abuse in the previous 12 months.22 The most prevalent form of abusefound in the study was financial abuse (see Figure 2).

Figure 2: Prevalence of Elder Abuse - Canada 1990

3

'0

'" 2.5>..

'"C::l

2U)

>..<:'"'0 1.5ill.....0

'"bJll'J"'" 0.52'"p...

0

2.5

~I 1.5

~~1.4

~~~ %/ . ~~; ~ ~Wi%i/I~ 0.4

~.~ I~J@I ~%.'/j'l/;; '//~ ~;'IWh

Financial Abuse Neglect Psychological Abuse Physical Abuse

Source: Podnieks and Pillemer SUlVev of2.000 Elderlv Canadians. 1990.

Since 1990, only one further study of prevalence rates has been conducted in Canada. Itfound that one in 12 (over 8%) of the older persons surveyed in British Columbiareported having been a victim of financial abuse since they were 60 years 01d.23

Abuse in institutional settings is a problem in Canada. Only a small proportion (5%) ofolder persons lived in institutions according to the 2001 Census, but what statistics wehave suggest that the prevalence of abuse in these settings is relatively high. A telephone

21 Abuse and Neglect ofOlder Adults, supra note 16 at 13-15. Sweden has a prevalence rate of 17% andFrance 20%.22 Elder Abuse and Neglect in Canada, supra note 8 at 17; Poirier and Poirier, supra note 8 at 13.23 Abuse and Neglect ofOlder Adults, supra note 16 at 14.

7

survey perfonned in Canada in 1992 found that, of 804 nurses and 804 nursing assistantssurveyed, 32% had witnessed physical abuse and 37% verbal abuse of older people. 24

While there are no statistics on abuse of the elderly for the Aboriginal population or anyother minority group, there is anecdotal evidence that this is a serious problem forAboriginal people. One recent study surveyed 40 Aboriginal female elders and foundthat 28 had experienced some fonn of abuse. 25 This is obviously not a representativesample, but coupled with the disturbing rates ofviolent crime, particularly domesticviolence, in Aboriginal communities it points to a real problem for vulnerable adults. 26

A recent report on the incidence of abuse of older persons in the United States collectedover 70,000 substantiated incidents of abuse of older persons in four categories in 20counties considered representative of the United States as a whole. 27 The study foundmore incidents of both neglect and psychological abuse than financial abuse (see Figure3).

Figure 3: Incidence of Elder Abuse - Select Categories ­United States 1996

40,0002lii3"" 35,000'5.s"" 30,000

~. ~ 25,000

]'" 20,000

'';::

BE 15,000;;;]

f/J

10,000

34,525

~?;;/"~0y~ 25,142

21,247 I I~ ~IS,144

~ ~~~

o/d%~~ 1/////0

Financial Abuse Neglect Psychological Abuse Physical Abuse

Source: The Nmio1lal Elder Abuse Incidence Sllld,'. 1998. at 5.

More importantly, the study in the United States pointed out that abuse of older persons isseverely under-reported. The study estimates, using data collected from "sentinel"agencies,2s that 79% of all abuse of older persons is not reported.29 While the study's

24 Abuse and Neglect ofOlder Adults, supra note 16 at 20-21. A recent report for the U.S. House ofRepresentatives found that one in three nursing homes had been cited for abuse violations between 1999and 2001. See Committee on Government Reform, Abuse ofResidents Is a Major Problem in u.s. NursingHomes (Washington: House of Representatives, 2001) at 4-5. Just over 9% of homes were cited for abusethat resulted in actual harm or serious injury to residents.25 Claudette Dumont-Smith, Aboriginal Elder Abuse in Canada (2002) [unpublished, archived atSaskatchewan Justice] at 8.26 See CCJS, Aboriginal Peoples in Canada (Ottawa: Statistics Canada, 2001) at 6-7, for a discussion of the1999 General Social Survey of victimization and rates of violence in Aboriginal communities, particularlyspousal violence.27 National Elder Abuse Incidence Study, supra note 8 at 5.28 A "sentinel" is a public or community-based organization that reports probable cases of abuse that havenot been officially reported. The identification of probable cases of abuse is based on criteria developed bythe survey in consultation with these organizations.

8

numbers and methodology are debatable, this very high percentage ofunreported abusedoes point to an underlying problem.

e) Abuse ofOther Vulnerable Adults

While the majority of reports of financial abuse in Saskatchewan will likely concernolder persons, a smaller percentage will concern the mentally and physically disabled orother vulnerable adults.

Most abuse ofmentally and physically disabled people is physical or sexual. Unlikeabuse of older persons, there have been no national surveys in Canada or elsewhere toestablish prevalence or incidence rates for the abuse ofmentally or physically disabledpeople.

Financial abuse of the mentally or physically disabled has not been studied to the sameextent as financial abuse ofthe elderly. We could find no studies ofthe prevalence offinancial abuse of the mentally or physically disabled in Canada or anywhere else. Giventhe seriousness of physical and sexual abuse of the disabled, particularly disabled women,financial abuse may not be considered as serious a problem as for older persons?O

Financial abuse ofother vulnerable adults certainly exists, however, and may become thesubject of investigations by the Public Guardian and Trustee of Saskatchewan. There isanecdotal evidence from other jurisdictions in Canada of close family seizing benefitmoney, spouses taking abusive control of a family's finances or outright theft frommentally and physically disabled adults.3

! Such abuse may also be occurring inSaskatchewan.

2. Legislation Concerning Financial Abuse of Vulnerable Adults in Canada

Few Canadian jurisdictions have legislation or policies around the investigation offinancial abuse ofvulnerable adults. Many have legislation concerning the abuse ofvulnerable adults in residential care homes. A number also have legislation authorizinggovernment or community agencies to investigate allegations of abuse ofvulnerableadults. Most of this legislation concerns only vulnerable adults who suffer some form ofincapacity, or are unable to protect themselves. Only one jurisdiction, Nova Scotia,requires mandatory reporting of all abuse of "adults in need of protection."

29 National Elder Abuse Incidence Study, supra note 8 at 4-1 to 4-4.30 Dick Sobsey, Violence and Abuse in the Lives ofPeoples with Disabilities (Toronto: Paul BrookesPublishing, 1994), for example, discusses the high prevalence and seriousness of sexual and physical abuseof the disabled.3! Roeher Institute, Harm's Way: The Many Faces of Violence and Abuse Against Persons with Disabilities(North York, ON: Roeher Institute, 1995) at 57-8.

9

(a) Alberta

The Protection for Persons in Care Act requires that all individuals or service providerswho have, "reasonable and probable grounds to believe and believes that there is or hasbeen abuse against a client," to report the abuse to:• The Minister;• A police service; or• A committee, body or service authorized under another enactment.32

There is no formal, publicly known process for any investigation by the Minister or by acommittee, body or service. It is therefore unclear what practical effect this provisionhas.

(b) British Columbia

The Adult Guardianship Act permits anyone who believes that an adult is abused orneglected and is unable to seek support and assistance to report it to a designatedagency.33

The designated agency determines if an adult is abused or neglected, and is incapable ofseeking support for him or herself. 34 The Act requires that the investigating agency:35• Interview the adult if at all possible;• Interview the spouse,near relatives, friends or anyone else who may be able to assist

in the investigation; and• Obtain any information that may be necessary, including reports from health care

providers, health and social service agencies or anyone who manages the adult'sfinancial affairs.

A court may also permit any investigating agency to enter any premise if it may help theagency with its investigations.36

The investigating agency is under a duty to report any criminal offence that it may thinkhas been committed against an incapacitated adult to the police.37

32 Protection for Persons in Care Act, R.S.A. 2000, c. P-29, s. 2(1). The Act applies to anyone who is aclient ofa hospital, lodge, nursing home or any other designated agency. Abuse is defined as intentionalcausing ofbodily harm, threats, intentional prescribing of incorrect doses of medication and intentionallyfailing to provide adequate nutrition.33 Adult Guardianship Act, R.S.B.C. 1996, c.6, s. 46(1). The Public Guardian and Trustee of BritishColumbia designates agencies for the purposes of this Act. See the Adult Guardianship Act, s. 61(a).34 Ibid.,s. 47(3)(d).35 Ibid., s. 48.36 Ibid., s. 49.37 Ibid., S. 50.

10

The Public Guardian and Trustee ofBritish Columbia has formulated extensiveguidelines around the investigation of abuse of older persons. The guidelines outline theprocesses and procedures to be used at each stage of an investigation.

(c) New Brunswick

The Family Services Act groups child and adult abuse together in the same part. The Actalso contains provisions relating to children in care, adoption, support orders and childcustody.

The Minister may investigate ifthere is reason to believe that an adult is being neglectedor abused. No one is required to report information to the Minister, but a professionalmay report any information slhe possesses, and no one may obs(ruct an investigation.38

(d) Nova Scotia

Nova Scotia's Adult Protection Act requires everyone who, "has information, whether ornot it is confidential or privileged, indicating that an adult is in need of protection," toreport it to the Minister.39 The Act defines "adult in need ofprotection" as, "a victim ofphysical abuse, sexual abuse, mental cruelty or a combination thereof, is incapable ofprotecting himself therefrom by reason ofphysical infirmity or mental infirmity."40

The Minister will inquire into the matter and cause an assessment to be made if there arereasonable and probable grounds that the adult is in need ofprotection.41

The provisions of the Act are very wide, and could encompass legally competent adultswho have no desire to report any incidents of abuse.

38 Family Services Act, R.S.N.B. 1983, c. F-2.2, s. 35. Unlike most provinces, the Minister may investigatea case of neglect even if the adult refuses to take the necessary steps to take care of him or herself.39 Adult Protection Act, R.S.N.S. 1989, c. 2, s. 5(1).40 Ibid., s. l(b)(i).41 Ibid., s. 6.

11

(e) Ontario42

Ontario's Substitute Decisions Act, 1992 contains provisions pennitting the PublicGuardian and Trustee of Ontario to investigate, "any allegation that a person is incapableofmanaging property and that serious adverse effects are occurring or may occur as aresult."43 The Act defines serious adverse effect as, "loss of a significant part of aperson's property, or a person's failure to provide necessities oflife for himself or herselfor for dependants ...."44

The Act further defines "incapacity to manage property" as, "[inability] to understandinfonnation that is relevant to making a decision in the management ofhis or herproperty, or ... to appreciate the reasonably foreseeable consequences of a decision orlack ofdecision."45

The Act also contains similar provisions pennitting the Public Guardian and Trustee toundertake similar investigations around personal care and physical injury.46

As well, any person who is not a resident of a nursing home, and, "has reasonablegrounds to suspect that a resident has suffered or may suffer hann as a result of unlawfulconduct, improper or incompetent treatment or care or neglect," is required to report theinfonnation to the director of the nursing home. The director is then required toinvestigate the matter. 47

(f) Prince Edward Island (P.E.!.)

P.E.I.'s Adult Protection Act bases its reporting and investigation scheme on a series ofprinciples, including:• Persons deserve, "necessary treatment, care and attention that is most effective and

yet least intrusive;"48• Adults have a need for self-detennination even if they are unable to express it fully;49• Adults can live as they choose and accept assistance ifthey choose;50

42 There are, of course, ways to deal with elder abuse other than action by government agencies or thecourts. The Restorative Justice Approaches to Elder Abuse Project, located in the Kitchener-Waterloo areaof Ontario, is one example. The Project is a "collaboration of seven community agencies" that has adopteda restorative justice model to ensure that more cases of elder abuse are dealt with in the community. SeeArlene Groh, "A Healing Approach to Elder Abuse," online: Conflict Resolution Canada - ReportingCanada Page <http://www.cmetwork.ca/reportingcanada>.43 Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 27(2). See also Office of the Public Guardian andTrustee of Ontario, Guardianship Investigations (Toronto: Office of the Public Guardian and Trustee,1993) at 4.44 Substitute Decisions Act, supra note 43, s. 27(1).45 Ibid., s. 6.46 Ibid., s. 62.47 Nursing Homes Act, R.S.O. 1990, c. N.7, s. 25.48 Adult Protection Act, R.S.P.E.I. 1988, c. A-5, s. 3(b).49 Ibid., s. 3(c).50 Ibid., s. 3(d).

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• Any intervention should be limited to the needs of the individual and will change asthese needs change;51 and

• The interests of the person are paramount.52

The P.E.!. Act sets up a framework for reporting and investigation by the Ministerresponsible. Anyone who reasonably believes that a person, "may be in need ofassistance or protection,"53 may report this beliefto the Minister or any designatedorganization. The Minister may then launch a preliminary investigation to determine ifthere is evidence necessitating a full investigation.54

If the Minister determines that a full investigation is warranted, the Minister may beginan in-depth assessment of the person's functional abilities to "cope with thecircumstances"55 which will include:• The person's condition, circumstances and needs; and• Health, social, residential, economic, vocational, educational and other components.56

If the Minister finds that the person is in need of assistance, the Minister will formulate ageneral case plan to serve the person's needs. The Minister will involve the person in thedevelopment of the case plan, where possible.57

(g) Quebec

The director of any health and social services institution must report to the Public Curatorany case in which a resident is unable to be assisted or represented in the exercise of civilrights because ofhis or her:• Isolation;• The foreseeable duration of incapacity;• Nature or state ofher or his affairs; or• His/her agent is unwilling or unable to assist the resident.58

(h) Saskatchewan

Currently, there is no proclaimed legislation in Saskatchewan that concerns theinvestigation or prosecution of abuse ofvulnerable adults specifically. The PublicTrustee Amendment Act, 2001, however, contains an unproclaimed section that wouldpermit the Public Guardian and Trustee to investigate: 59

51 Ibid., s. 3(e).52 Ibid., s. 3(f).53 Ibid., s. 4(1).54 Ibid., S. 5.55 Ibid., s. 6(2).56 Ibid.57 Ibid., S. 7.58 Art. 270 C.c.Q.59 Public Guardian and Trustee Amendment Act, supra note 1.

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...an allegation that a person the public guardian and trustee has reasonablegrounds to believe is a vulnerable adult:

• Is being subjected to financial abuse by another person, including aperson appointed as his or her property decision-maker pursuant to TheAdult Guardianship and Co-Decision-Making Act; or

• Is unable to make reasonable judgments respecting matters relating tohis or her estate and that the estate is likely to suffer serious damage orloss.

The legislation also defines financial abuse as, " ...the misappropriation of funds,resources or property by fraud, deception or coercion."

The Personal Care Homes Regulations, 1996 already require a licensee to report any"serious" incident, including harm or the likelihood ofharm, to the personal supporter ofthe resident, the resident's personal physician, the Department of Health and the regionalhealth authority. The licensee must also provide the Department ofHealth with a reporton the incident at a later date.60

The Department ofHealth, in consultation with the Department of Justice and thePersonal Care Homes Association, is currently developing an abuse policy for carehomes. This policy is in draft and is not yet ready for distribution. Once it is finished, aprotocol will be developed for each community. The Department is also determiningwhether to adopt "whistle blower" legislation for personal care homes.

III. ANALYSIS:

Clearly, in a perfect world the Public Guardian and Trustee would investigate everyallegation of financial abuse in Saskatchewan fully. We may live in the best of allpossible worlds, however, not a perfect world. Resources for the investigation offinancial abuse of vulnerable adults in Saskatchewan will likely be limited.

It may not be appropriate for the Public Guardian and Trustee to deal with certain typesof abuse. Physical and psychological abuse, for example, are not matters that the PublicGuardian and Trustee could or even should investigate. Instead, anyone reporting anallegation ofphysical or psychological abuse or neglect should be referred to the police.

If we assume that approximately 2% of older persons will suffer some form of financialabuse in any given year, then Saskatchewan will have at least 3,000 cases of financialabuse ofolder persons annually, not including financial abuse of other vulnerable adults.The Public Guardian and Trustee would require significant incremental resources toinvestigate even 10% of this amount.

The process for the investigation of financial abuse ofvulnerable adults is included in theAppendix to this document. The following sections analyse the larger policy questionsarising from this process.

60 Personal Care Homes Regulations, 1996, Sask. Reg. 2/96, s. 13.

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(a) Initial Assessment

No investigation should go ahead unless there is a reasonable likelihood that abuse hasoccurred. This will save the Public Guardian and Trustee from wasting time on fruitless,frivolous or vexatious investigations. This means gathering as much information aspossible at the beginning of a case and conducting an initial assessment ofwhether aninvestigation ought to proceed.

The initial assessment should be undertaken for all reports of financial abuse ofvulnerable adults. It will be next to impossible, at an early stage, to know the true extentof the abuse or its seriousness without some form of assessment.

Any investigation mustbegin with a phone call or other form of communication. This isa crucial stage in the investigation of any abuse. At this point the investigator, orwhoever receives the call, must collect as much crucial information as possible in orderto determine how to proceed with the file. This information will form the basis for theinitial assessment.

To proceed, any investigation must determine whether there is a reasonable likelihood ofat least one incident of abuse. Naturally, the degree of evidence necessary to constitute a"reasonable likelihood" will be different from one case to another, and much will dependon the judgement of the investigator. Roughly, the investigator should determinewhether, on the balance ofprobabilities, the information would suggest that vulnerableadult has either suffered financial abuse or is in imminent danger.

Evidence that could be relied on to substantiate the need for an investigation of financialabuse includes:• A statement by a personal representative that slhe believes financial abuse has

occurred, is occurring or is imminent;• The statement of a nursing home director or private care home licensee that a resident

may have suffered financial abuse or that such abuse is imminent; or• A report from a financial institution that there are irregularities in a vulnerable adult's

affairs, and/or that the financial institution has undertaken the measures outlined insection 19 of The Public Trustee Amendment Act, 2001.

Statements or reports from family, friends or the victim may also be the basis for aninvestigation, but should be approached with more caution and backed with corroboratingstatements where possible.

The investigator ought also to consider the evidence that could be made available, andwhether such evidence would disclose at least one incident of financial abuse.

The investigator should act according to the precautionary principle that it is better to erron the side of caution than to run the risk of serious financial abuse going uninvestigated.

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This means that the investigator should investigate any case that slhe thinks meritsinvestigation.

Recommendation: We recommend that all reports of financial abuse of vulnerableadults undergo an initial assessment to determine whether the report discloses areasonable likelihood that at least one incident of financial abuse has occurred.

(b) Secondary Assessment - Seriousness ofAbuse and Capacity ofthe Adult

Once the initial assessment is completed, the investigator may undertake a secondaryassessment if the evidence collected or that could be collected establishes a reasonablelikelihood of financial abuse of a vulnerable adult. The secondary assessment willestablish:• Whether the alleged victim is a "vulnerable adult" for the purposes of the Act; and• Whether the alleged financial abuse would be serious enough to warrant

investigation.

• Seriousness of Abuse: Most jurisdictions, like Saskatchewan, are unable toinvestigate every allegation of abuse of vulnerable adults. Most jurisdictionstherefore restrict investigations, through legislation or policy guidelines, to only themost serious matters.

An arbitrarily established "triggering" quantum of loss ought not to be the basis forbeginning an investigation, however. While the size of the amount lost is obviously afactor, the effect ofthe loss on the vulnerable adult should also be considered.Vulnerable adults on fixed incomes require only a relatively small shift in resourcesto make it impossible for them to continue living in their accustomed style. The lossof a relatively small nest egg may have a very grave impact on a vulnerable adult.

Ontario restricts the investigation of abuse ofvulnerable adults to matters with"serious adverse effects." This is defined as, "loss of a significant part of a person'sproperty, or a person's failure to provide the necessities oflife for himself or herselfof for dependants."61 This balances the amount lost with the effect of the loss. We

.recommend that such a balanced approach be adopted in Saskatchewan.

The investigator should investigate anytime that slhe thinks that the alleged financialabuse is serious.

• Capacity: Most jurisdictions will only carry out a full investigation of alleged abuseof a vulnerable adult if the vulnerable adult is incapable of asserting his or her ownrights. This ensures that the rights ofvulnerable adults are respected, but also thatvulnerable adults will be protected if they are suffering harm.

There is obviously a continuum ofcapacity, ranging from slight confusion tocomplete inability to understand even the most basic concepts and ideas. It will never

61 Substitute Decisions Act, supra note 46, s. 27(1).

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be possible to have an absolutely faultless measure of incapacity. The Public TrusteeAmendment Act, 2001 defines "vulnerable adult" for the purposes of the Act. It givesthe Public Guardian and Trustee authority to investigate only where the allegedvictim is, "an individual, 16 years of age or more, who has an illness, impairment,disability or aging process limitation that places the individual at risk of financialabuse." 62

The investigator should then undertake a two-part test:

Determine whether the victim suffers from an illness, impairment, disability orsome other infirmity; and

Determine whether this illness, impairment, disability or infirmity would put anindividual at risk of financial abuse.

If the answer is yes to both questions, and the abuse is serious enough to warrant aninvestigation, then the investigator should launch a full investigation.

If the victim already has a guardian or co-decision-maker, has a certificate ofmentalincompetence issued upon them, or is otherwise officially recognized as sufferingfrom a disability that puts the adult at risk, the investigator may conclude that thevictim is a "vulnerable adult" for the purposes ofthe Act. In other cases, however,the evidence ofthe victim's incapacity may well be limited.

The Health Information Protection Act (which will be proclaimed into law onSeptember 1, 2003) does not permit a "trustee" (including a medical professional) todisclose "personal health information" to a third party unless:• The individual concerned consents to the disclosure;• The person is deemed to consent by reason ofthe, "purpose for which the

information was collected";• The, "purpose will primarily benefit the subject individual";• The trustee, "believes, on reasonable grounds, that the disclosure will avoid or

minimize a danger to the health or safety of the person"; or• If another Act or regulation permits such disclosure. 63

The investigator is not empowered to compel an assessment of the victim's capacity,nor is the investigator empowered to access any medical records. 64 It will be very

62 Public Trustee Amendment Act, supra note 1.63 The Health Information Protection Amendment Act, 2003, 8.8. 2003, No. 28, ss. 5(2) and 14. Theseamend sections 5(1) and 26-28 of The Health Information Protection Act, 8.8. 1999, c. H-0.021[hereinafter Health Information Protection Act], which was not been proclaimed into law. Note that thePublic Guardian and Trustee is a "trustee" of personal health information, as defined by section l(t) of theAct. The Act seeks to balance the privacy rights of the patient with any other rights, so that criminal, civiland extra-judicial processes can be as full and fair as possible. 8ee John Dawson, "Compelled ProductionofMedical Reports" (1998) 43 McGill L.J. 25 for a discussion of medical privacy law in Canada.64 The courts would compel an assessment of the victim as part ofproceedings to determine whether theadult is mentally incompetent under The Mentally Disordered Persons Act, R8.8. 1978, c. M-14, ss. 38.2­38.4;or as part ofthe application process to become the adult's guardian or co-decision-maker under TheAdult Guardianship and Co-Decision-Making Act, 8.8.2000, c. A-5.3, s. 38.

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difficult for the investigator to determine whether the victim is a vulnerable adult,unless:• The alleged victim already has a property guardian, co-decision-maker or is

otherwise publicly certified as incapable;• The victim suffers from a debilitating condition that is obvious to the investigator

or is otherwise acknowledged;• The victim consents to release any extant medical records, or agrees to undergo

an assessment of capacity; or• A medical practitioner voluntarily provides medical records to the investigator

attesting to the illness, impairment, disability or aging process limitation of thevictim and that such disclosure falls within The Health Information ProtectionAct.

This may interfere with the investigator's ability to undertake a secondaryassessment. There will be instances in which the investigator will be unable toproceed with an investigation for lack of information around the capacity (or lackthereof) of the victim. It may be impossible for the investigator to proceed on theevidence of friends, family and acquaintances alone if a medical professional doesnot feel that disclosure will avoid or minimize a danger to the person concerned.65

If this interferes too often with the investigator's ability to undertake investigations,we recommend that the legislation be amended along the lines of New Brunswick'sFamily Services Act66 at some future date to include a provision empowering thePublic Guardian and Trustee to:• Compel a medical professional to provide an already existing medical assessment

of the capacity of someone suspected ofbeing a vulnerable adult for the purposesof The Public Trustee Amendment Act, 2001; or

• Compel a medical assessment of the alleged victim to establish whether thevictim is a vulnerable adult for the purposes of The Public Trustee AmendmentAct, 2001.

Recommendation: We recommend that a secondary assessment determine whether:• The adult is a "vulnerable adult" for the purposes of the Act; and• The alleged abuse is serious, using Ontario's test for "serious adverse effect,"

balancing the quantum of the loss with the effect on the vulnerable adult.

We further recommend that, if the existing powers conferred by The Public TrusteeAmendment Act, 2001 prove consistently insufficient to establish whether the allegedvictim is a vulnerable adult for the purposes of the Act, the legislation be amended

65 If the investigating officer does proceed, and there is insufficient evidence to detennine that the adult is"vulnerable" for the purposes of the Act, the officer may expose both him/herself and the Public Guardianand Trustee to a suit to have the matter dropped. The Court of Queen's Bench recently quashed acertificate of incompetence because a medical assessment was performed using subterfuge. See Brady v.Saskatchewan (Public Trustee), [1999] S.J. No. 328 at 7.66 Family Services Act, supra note 38, s. 35.

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to include the following provision (wording based on New Brunswick's FamilyServices Act):

"40.7(2.1) Subject to subsections (2) and (4), the public guardian and trustee mayrequire a medical practitioner to provide any record in the practitioner's possessionthat may establish whether a person is a vulnerable adult.67

(2.2) The public guardian and trustee may authorize a medical practitioner toexamine and report on whether the person believed to be a vulnerable adult suffersfrom an illness, impairment, disability or aging process limitation that places theindividual at risk.

(2.3) The authorization of the public guardian and trustee under subsection (2.2) issufficient authority to any medical practitioner to perform the responsibilities setout in subsection (2.2) without the consent of the person being examined."68

c) Case Management

Considering the principle that the rights of the vulnerable adult must be respectedwherever possible, we propose that a case management approach be taken to theinvestigation of financial abuse ofvulnerable adults in Saskatchewan. This approach willinform the vulnerable adult to the extent possible (considering the vulnerable adult'scapacity) ofthe potential outcomes of the investigation for the abuser and the abusedvulnerable adult. It will also inform all those close to the victim, including any attorney,co-decision-maker, property guardian, lawyer or family.

The investigator will contact the alleged victim, the victim's attorney, co-decision-maker,property guardian, lawyer or close family at the earliest opportunity in order to outlinethe process of the investigation and its potential outcomes. The views of the victim willbe solicited, but will not necessarily determine whether the investigation ought to proceedor not. No one who is suspected of the abuse will be contacted at this stage.

67 The Canadian Medical Association's Code ofEthics contains the following provision: "22. Respect thepatient's right to confidentiality except when this right conflicts with your responsibility to the law, or whenthe maintenance of confidentiality would result in a significant risk of substantial harm to others or to thepatient if the patient is incompetent; in such cases, take all reasonable steps to inform the patient thatconfidentiality will be breached."

While individual practitioners may not wish to comply with a request from an investigating officer forrecords, the above provision is wide enough to permit them to do so if they are satisfied that theinvestigation will protect the adult concerned, that the information that they hand over will be heldconfidentially by the Public Guardian and Trustee and that they are able to inform the patient thatconfidentiality is being breached and the reasons for doing so.68 Requiring the assent of the victim to undergo such a medical assessment may not be feasible or desirable.The incapable are by defmition unable to give or refuse assent. Unfortunately, if a person required toundergo such an assessment were subsequently found to be capable, the investigating officer and PublicGuardian and Trustee could be liable for infringing the Charter rights ofthe person. The New Brunswickprovision has not yet been challenged and is still in force, but it too could be open to a Charter challenge.

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The investigator will contact the same group ofpeople at the conclusion of the case tooutline the decisions taken, their potential consequences, and to help formulate a plan forthe continuing protection of the vulnerable adult in future.

This approach will afford the victim as much input as possible, and will also help informthose close to the victim.

Recommendation: We recommend that the investigator adopt a case managementapproach. This means that the investigator will contact the victim and those close tothe victim at the beginning and the end of the investigation, to outline the potentialoutcomes of the investigation.

IV. OPTIONS:

1. Adopt the Recommended Guidelines for Investigation of Financial Abuse ofVulnerable Adults.

Advantages:

• Offers some protection to vulnerable adults in the province;• Recognizes that financial abuse is a serious problem in Saskatchewan;• Serious abuse will be investigated;• Respects the rights ofvulnerable adults; and• Keeps vulnerable adults informed of the process and potential outcomes of any

investigation.

Disadvantages:

• Most incidents of abuse will not be investigated;• It may not be possible to determine whether an adult is a "vulnerable adult" for the

purposes of The Public Trustee Amendment Act, 2001; and• The Public Guardian and Trustee will require some incremental resources.

2. Investigate All Allegations of Financial Abuse of Vulnerable Adults.

Advantages:

• Denounces all types of financial abuse wherever they occur;• Respects the rights ofvulnerable adults;• Keeps vulnerable adults informed of the process and potential outcomes of any

investigation; and• Vulnerable adults will be given as much protection as possible.

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Disadvantages:

• The Public Guardian and Trustee will require significant incremental funding toinvestigate all allegations of financial abuse in the province; or

• Without a significant funding increase, the Public Guardian and Trustee is unable toinvestigate complaints effectively and completely.

3. Do Not Investigate Financial Abuse of Vulnerable Adults.

Advantages:

• The Public Guardian and Trustee does not require additional resources.

Disadvantages:

• There is no agency responsible for investigating reports of financial abuse ofvulnerable adults;

• The serious problem of financial abuse of vulnerable adults goes without an officialand centralized government response; and

• There is little or no protection for vulnerable adults from particularly serious forms offinancial abuse.

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APPENDIX

GUIDELINES FOR THE INVESTIGATION OF FINANCIAL ABUSE OFVULNERABLE ADULTS IN SASKATCHEWAN

Authority of Investigator

The investigating officer has the authority conferred by section 19 of The Public TrusteeAmendment Act, 2001 to examine any record relating to the finances of the victim,whether in the possession of the person believed to be a vulnerable adult or any otherperson, at any reasonable time, and may require any other person to provide anyinformation and explanations the investigating officer considers necessary.

The investigating officer may therefore require that any already extant financial record beprovided. The investigating officer may also interview anyone with information pertinentto the investigation both to gather the information and any explanations.

If the investigating officer determines at any point that the vulnerable adult is a"dependent adult" for the purposes of The Public Trustee Amendment Act, 2001, s. 6(1),and that the adult has no guardian or co-decision-maker, the investigating officer mayrecommend to the Public Guardian and Trustee that an application be made pursuant toThe Adult Guardianship and Co-Decision-Making Act and The Public Guardian andTrustee Act to have the Public Guardian and Trustee declared the guardian or co­decision-maker of the "dependent adult."

1. Initial Assessment (Use Form 1)

• The investigating officer receiving a report of alleged financial abuse of a vulnerableadult should ask a number of detailed questions using Form 1 to establish:

The nature of the alleged abuse;

The risk of further abuse;

Whether any previous investigations have been undertaken by the police or anyother authority;

The victim's financial arrangements and whether s/he has an attorney, co­decision-maker or guardian;

The victim's living arrangements;

The relationship between the alleged abuser and the victim;

The alleged abuser's role in the financial affairs ofthe victim; and

Any other factors pertinent to such an investigation.

• Given the information collected in the initial contact, the investigating officer shouldthen determine:

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Whether the evidence so far collected is credible and to what extent it discloses areasonable likelihood that at least one incident of financial abuse has taken place;

What further evidence could be collected and could be made available to theinvestigating officer;

Whether to proceed with the secondary assessment; and

Whether to involve the police, if there are credible allegations of physical abuseand/or the victim is in imminent danger.

• If the victim has a guardian, and the guardian is not suspected of abuse, theinvestigating officer should contact the guardian to determine whether slhe wishes toinvestigate the matter.

2. Secondary Assessment (Use Form 2)

• If the investigating officer determines that the evidence collected or that could becollected warrants it, the officer will initiate a secondary assessment.

• The secondary assessment determines:Whether the victim is a "vulnerable adult" for the purposes of section 19 of ThePublic Trustee Amendment Act, 2001. To be a vulnerable adult for the purposesofthe Act, the adult must have an illness, impairment, disability or aging processlimitation that places the adult at risk of financial abuse. This may include amental or a physical disability; and

The seriousness of the reported abuse. The officer should balance the amount ofthe loss with the seriousness of the loss to the victim to determine whether theabuse is serious, defined as, "loss of a significant part of a person's property or aperson's failure to provide the necessities oflife for himself or herself ordependants."

• Assessing whether a victim is a "vulnerable adult" will include analysis of any publicdocuments and verbal evidence from as many sources close to the adult as possible.Ifpossible, an interview with a medical practitioner, attorney, co-decision-maker,personal guardian, property guardian (if any, and if they are not suspected of abuse)or close family should be held.

• Any person with a financial record necessary to the investigation must provide it tothe investigating officer together with any explanations. The investigating officer,however, cannot compel an assessment of the capacity of the alleged victim if onedoes not already exist nor require that already existing medical records be provided.

A court may compel a capacity assessment for an adult who is the subject of anapplication for guardianship or co-decision-making. If the investigating officerbelieves that the alleged victim is a "dependent adult" for the purposes of The PublicTrustee Amendment Act, 2001, the investigating officer may recommend to the Public

) Guardian and Trustee that an application be made to become the alleged victim's

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guardian or co-decision-maker pursuant to The Adult Guardianship and Co-Decision­Making Act and The Public Guardian and Trustee Act. The court will order anassessment of the adult's capacity as part of this process.

• If the victim has a guardian or co-decision-maker, this is prima facie evidence that thevulnerable adult suffers from an impairment, disability, disease or aging processlimitation.

• If the victim has full capacity to assert his or her rights or protect him or herself, orthe abuse is not considered serious enough in the investigating officer's opinion towarrant further investigation, the matter will not be further investigated.

• If the victim is capable but in a high-risk situation, the investigating officer shouldensure that the adult or caller is given all relevant referrals (e.g. police, legal, health).

• If the matter is not further investigated either after the first or second assessment, theofficer should contact those who made the initial report of alleged financial abuse andexplain to them why the matter will not be further investigated. A file on the mattershould, nonetheless, be kept for at least two years, in case a subsequent allegation offinancial abuse is made against the same person.

• The investigating officer will launch a full investigation if, on the evidence of thesecond assessment:

The victim is a vulnerable adult within the definition of the Act; and

The alleged abuse is "serious." Seriousness is determined by balancing thequantum of the loss with the effect ofthe loss on the vulnerable adult.

3. Case Management

• Once the decision has been taken to begin an investigation, the investigating officershould contact the vulnerable adult and any attorney, co-decision-maker, propertyguardian, lawyer or close family to inform them of the investigation and outline itspotential consequences for the abuser and the abused.

• If the vulnerable adult is completely incapacitated the investigating officer shouldcontact the attorney, personal guardian or property guardian of the vulnerable adult todiscuss the investigation with them.

• No attorney, co-decision-maker, property guardian, lawyer or close family who issuspected of abusing a vulnerable adult will be contacted at this stage.

• Every effort should be made to outline his or her rights to the vulnerable adult, andthe consequences of the investigation should be clearly and fairly outlined. Noundertaking should be made as to the potential outcome for the abuser. It should also

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be understood that the vulnerable adult does not decide whether an investigation goesahead.

• Once an investigation is completed, the investigating officer should contact thevulnerable adult and his or her attorney, co-decision-maker, property guardian,lawyer and/or close family once more to discuss the findings ofthe investigation andthe options for further action, if any.

4. The Investigation

• The officer will contact those who may have evidence concerning the allegedfinancial abuse, including:

The vulnerable adult;

Relatives or friends;

The vulnerable adult's attorney, co-decision-maker or property guardian; and/or

The vulnerable adult's financial institution(s).

• Any person with a financial record necessary to the investigation must provide it tothe investigating officer together with any explanations. The investigating officercannot compel an assessment of the capacity of the vulnerable adult if one does notalready exist nor may the officer compel the provision of an already existing medicalrecord.

• The investigating officer will also ensure that all assets in financial institutions arefrozen.

• If the attorney, co-decision-maker, personal guardian, property guardian, lawyer orclose family is the person suspected ofbeing the abuser, s/he should be notified ofthis fact and asked to provide any evidence in their possession and a full accounting(if applicable). If none is provided, this should be noted and included in theinvestigation file. If the attorney, personal guardian, property guardian, lawyer orclose family does not produce an accounting, every legal means should be taken toensure that they are compelled to do so.

• If the vulnerable adult is in a high-risk situation, the investigating officer shouldensure that the adult or caller is given all relevant referrals (e.g. police, legal, andhealth).

• The investigating officer will determine whether the evidence collected containsenough evidence of financial abuse to go forward. S/he will conclude that financialabuse has occurred only if:

The evidence disclosed is credible;

The evidence discloses a loss caused by fraud, theft or other criminal, negligent orotherwise wrongful act; and

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The evidence shows on the balance ofprobabilities that at least one incident offinancial abuse has occurred.

5. Post-Investigation

• The investigating officer should compile a final report on the investigation andforward it, along with copies of any other relevant documents contained in the file, tothe Public Guardian and Trustee. The Public Guardian and Trustee may then reviewthe material and meet with the investigating officer to discuss a potential course ofaction.

• The investigating officer may then:Forward the file and any evidence collected, together with a covering documentsummarizing the initial and secondary assessments and the investigation, to thepolice or any other authority for further analysis and potential prosecution of theabuser. The police will be able to get the vulnerable adult in touch with VictimsServices;69

If the vulnerable adult is in need of immediate protection, or is a victim ofdomestic violence as well as financial abuse, contact the police or the licensee ofa personal care home in which the vulnerable adult resides; and

. Consult with the vulnerable adult and his or her lawyer to determine whether theywish to proceed with a civil action to gain restitution of any assets or moneyswrongly appropriated. Any necessary evidence gathered during the investigationmay then be provided to the abused vulnerable adult's lawyer.

• The investigating officer may also discuss the need for a plan for the ongoingprotection of the vulnerable adult with the vulnerable adult, attorney, co-decision­maker, personal guardian, property guardian, lawyer, manager(s) of the vulnerableadult's financial institution(s) or close family of the vulnerable adult.

• If the investigating officer determines at any point that the vulnerable adult is a"dependent adult" for the purposes of The Public Trustee Amendment Act, 2001, s.6(1), and that the adult has no guardian or co-decision-maker, the investigating officermay recommend to the Public Guardian and Trustee that an application be madepursuant to The Adult Guardianship and Co-Decision-Maldng Act and The PublicGuardian and Trustee Act to have the Public Guardian and Trustee declared theguardian or co-decision-maker of the "dependent adult."

69 As a "trustee" for the purposes of the Health Information Protection Act, supra note 66, the PublicGuardian and Trustee ought not to disclose any medical records in the Public Guardian and Trustee'spossession except in the circumstances provided for in the Act.

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FORMl

INITIAL ASSESSMENT

File No.: _

Client Name: Date of Birth: _

Location: --------------Attorney Co-decision-maker Personal Guardian Property Guardian _

Caller Name: Connection with Client: ------------Caller Phone Number: Caller Address: _

Report Details of First Call: Please fill in as extensively as possible.

Nature of Alleged Abuse:

Alleged Abuser (name, connection with client, occupation, nature ofrelationship with client):

Client Living Arrangements:

Client Family Relationships:

Client Financial Arrangements (including details of financial institutions, powers of attorney, property guardianship or anyother arrangement):

Capacity of Client (age of client, does the client live in a nursing home, what is the client's ability to accomplish basicfunctions) :

Any Other Important Matters:

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Initial Assessment: Proceed--------

Reasons:

Referrals: Referrals Were Made to:

Do not Proceed _

Police: Yes No

Health District: Yes No

Seniors Mechanism: Yes No

Financial Institution: Yes No

Other Agency: Yes __ No __ IfYes, Specify:

Investigating Officer Signature: _ Date: _

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FORM 2

SECONDARY ASSESSMENT

File No.: _

Client Name: Date of Birth: _

Location: _

Attorney Co-decision-maker Personal Guardian Property Guardian _

Caller Name: Connection with Client: _

Caller Phone Number: Caller Address: -------------

Seriousness of Abuse: Abuse is Serious: Yes No _

Quantum of Loss:

Effect of Loss on Victim:

Is Loss Ongoing? Is Loss Imminent?:

Capacity: Client is a Vulnerable Adult: Yes No _

Medical Practitioner Report:

Evidence From Initial Assessment (age of client, does the client live in a nursing home, what is the client's ability toaccomplish basic functions):

Evidence of Investigating Officer Interview with Client:

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Evidence of Illness, Impairment, Disability or Aging Process Limitation from Family Members or Others Close to Client:

Evidence of Illness, Impairment, Disability or Aging Process Limitation from Care Home Staff (if applicable):

Evidence that any Illness, Impairment, Disability or Aging Process Limitation "places the individual at risk of financial abuse:"

Secondary Assessment: Proceed with Investigation: Yes No

Reasons:

Referrals: Referrals Were Made to:

Police: Yes No

Health District: Yes No

Seniors Mechanism: Yes No

Financial Institution: Yes No

Other Agency: Yes __ No __ If Yes, Specify:

Investigating Officer Signature: _ Date: _

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Case #1

Case #2

APPENDIX "A"

CASES

Dependent Adult - Age 62:

Daughter appointed as Property Guardian.

The daughter sold the dependent adult's land to her husband for$16,000.00 by taking a mortgage for the full amount.

The value ofland was $20,000.00 or more.

Husband made payments of$1,050.00.

The daughter sold the dependent adult's car to another daughter, for$10,000.00, instalments $125.00 per month.

The daughter received Canada Pension Plan Survivors' benefit cheques of$233.76 per month for the dependent adult.

The Public Guardian and Trustee was appointed property guardian.

At that time, the Hospital was owed $15,459.00.

Dependent Adult - Age 73:

The daughter was the Property Guardian.

The dependent adult had about $30,000.00 in the bank.

Funds were withdrawn and/or transferred to a bank account in BritishColumbia.

The daughter received Old Age Security pension cheques of$653.23 permonth and Canada Pension Plan cheques of $396.47 per month.

The Public Guardian and Trustee was appointed.

At that time, the outstanding bills were: Nursing Home charges ­$10,408.34; Hospital charges - $3,450.70; Credit Card - $2,155.49;Drugstore - $1,323.42. Total $17,337.95

Case # 3

Case #4

Dependent Adult - Age 73:

The daughter was handling the pensions, but not as Property Guardian andshe mishandled the funds.

Apparently the daughter was going through some money problems ofherown and did not pay the nursing home.

When the Public Guardian and Trustee became involved, funds that wereowing to Nursing Home $7,000.00 and to the Drugstore $985.00. Total$7,985.00.

Dependent Adult - Age 88:

The dependent adult transferred bank: accounts, approximately $70,000.00into joint account with daughter because she was finding it difficult to getto the bank:.

The funds were used by daughter and daughter's children.

The account balance ended up with a nil balance.

The Public Guardian and Trustee became Property Guardian.

APPENDIX liB"

Q.B. No.__ of__

IN THE QUEEN'S BENCHJUDICIAL CENTRE OF ASSINIBOIA

IN THE MATTER OF THE PROPERTY GUARDIANSHIP OF NAME OF ADULT

SUBMISSION ON BEHALF OF THE PUBLIC GUARDIAN AND TRUSTEE OFSASKATCHEWAN

The Public Guardian and Trustee of Saskatchewan respectfully submits that The Adult

Guardianship and Co-decision-making Act, S.S. 2000 c.A-5.3, (the "Act") requires an

applicant for a property guardianship order to provide a bond and one or more sureties to

secure the entire value of the adult's estate. The Public Guardian and Trustee's Office

submits that the Act requires the court to order the filing of a bond unless exceptional

circumstances exit. Although the predecessor legislation, The Dependent Adults Act S.S.

1989-90 c.D-25.1, gave the court wide discretion to dispense with the requirement that a

property guardian provide a bond, the Act requires a more restrictive exercise of the

court's discretion. The purpose of providing security is clear. An adult's assets must be

protected to ensure that funds remain available for the adult's ongoing care. In a recent

fiat, Mr. Justice Laing confirmed these statements to be the general principles that

govern the interpretation and application ofthe bonding requirements in the Act (Re

Sotnikow, unreported, Q.B.G. No. 2305/2002, Judicial Centre of Saskatoon, Laing, J.,

February 6, 2003).

The Adult Guardianship and Co-decision-making Act provides as follows:

Undertaking required55(1) A person, other than the public trustee, who is appointed property co-decision­maker or property guardian shall file a bond, in the prescribed form, with the local

2

registrar ofthe court, undertaking to properly act as property co-decision-maker orproperty guardian for the adult, with any sureties that the court may require.

(2) Unless the court directs otherwise, the bond required by this section is to be in anamount that is equal to or greater than the sworn value of the adult's estate.

(3) The court may direct that more than one bond be given in order to limit the liability ofa surety to an amount that the court considers reasonable.

(4) The court may dispense with the filing ofa bond pursuant to subsection (1):(a) where the value of the estate does not exceed a prescribed amount;(b) where the nearest relatives and public trustee consent in writing; or(c) in any other situation the court considers appropriate.

Subsection (1) provides that the applicant shall file a bond in the prescribed form with

any sureties the court may require. It is submitted that this subsection makes it clear that,

while the court may determine the type and number of sureties required, a bond should

always be required.

The issue concerning the filing of a bond by an applicant was considered in the matter of

NM. W, Re (2002) 211 Sask. R. 298. In that case, the proposed property guardian

requested dispensation for the filing of a bond. Upon reviewing the relevant provisions

of the Act and its regulations, Madam Justice Rothery emphasized the need for the filing

of a bond. In her fiat, she states:

"If! were to dispense with the filing of the bond, I must determine ifthis is a 'situationthe court considers appropriate' as outlined in s.55(4)(e) ofthe Act.

On the face of the application there appears to be no situation present that would lead thecourt to entertain a motion dispensing with filing the bond. Oppositely, this is the type ofsituation that lends itself to the need for one. The proposed property guardian is theadult's niece. There are four other next-of-kin, two nephews and two grand nieces. Allfive are residual beneficiaries to the adult's considerable estate. While the other fournext-of-kin see no need for a bond, the court must ensure the adult is protected, and fundsremain available for her ongoing care. Thus, relief under s.55(4)(c)ofthe Act is denied.

3

I must emphasize that my exercise of discretion in this case has nothing to do with anyconcern about Ms. K's integrity. There is none. Since the Public Guardian and Trusteedid not consent to an order dispensing with the bond, I must apply the law as stated. Nocompelling situation is present to relieve Ms. K of such requirement."

In addition to requiring the applicant to file a bond, the Public Guardian and Trustee

requests that the court require one or more sureties. It is often assumed that the reference

to "surety" means a surety company, but this is not the case. A surety can be a spouse,

relative, neighbor, friend or a surety company.

The financial position of the applicant and of each surety will determine how many

sureties are required to ensure that the entire estate is protected ifmisappropriation

occurs. If the combined financial position of the applicant and one surety is such that any

losses to the estate could be repaid, then it may not be necessary to require a second

surety. Ifthe financial resources of the surety are limited, it may be necessary to require

a second surety to ensure that the entire estate is protected. Therefore the Public

Guardian and Trustee requests that the applicant and each surety provide a financial

statement.

There is often concern that if a surety company is used, annual premiums will be charged

and this can be seen as an unnecessary expense for the estate. However, the Public

Guardian and Trustee's Office has seen cases where a property guardian has

misappropriated funds and the adult ends up having nothing or very little for living

expenses. When this occurs, and there is no bond or surety, there is no recourse.

Therefore, the cost of the surety company premium can be viewed as a very reasonable

4

insurance fee to ensure that the adult has assets to support himself or herself if the

property guardian proves to be unreliable.

The Court recently confirmed the need for a proposed property guardian to provide a

bond and commercial surety as security for an adult's estate (Re Palidwor, unreported,

Q.B. No. 222/2002, Judicial Centre ofPrince Albert, Foley, J., June 5, 2002). In that

case, the adult's property consisted of a monthly pension and about $83,000 in a deposit

account. The applicant requested a property guardianship order without a bond. The

Court refused and ordered the filing of a bond together with a commercial surety, the

premiums to be charged against the adult's estate. In making the determination, the judge

highlighted the safeguards required to protect the adult's estate:

"Her role [proposed property guardian] and stewardship are monitored by the statutoryrequirement of an annual accounting, her good faith will be insured through the postingofa bond."

Further, the Public Guardian and Trustee requests that where an applicant's assets are

located outside'of the jurisdiction of Saskatchewan, a surety company or surety resident

in Saskatchewan provide security to cover the entire value of the adult's estate. In these

circumstances, additional protection ofthe adult's estate is warranted. Otherwise, if

misappropriation occurs, the adult's position is further jeopardized as legal action outside

of Saskatchewan would be extremely costly, time-consuming and perhaps ultimately

unsuccessful.

This principle was endorsed in an unreported fiat ofMr. Justice Scheibel (Re Hintz,

unreported, Q.B. No. 836/2002, Judicial Centre ofRegina, Scheibel, J., May 9,2002).

5

The proposed property guardian was an Alberta resident with his assets located in

Alberta. The Public Guardian and Trustee requested the applicant to file a bond and

secure the value ofthe adult's estate with a commercial surety or one or more sureties

resident in Saskatchewan. The applicant challenged the need for a commercial bond or

surety and cited the costs associated with it. The judge ordered the filing of a commercial

bond on the following basis:

"In view ofthe significant value ofthe adult's assets a bond is to be filed - in partbecause the proposed guardian resides outside of the jurisdiction of this court."

Subsection (2) provides that the amount of the bond is to be equal to the value ofthe

estate. It is submitted that this is generally reasonable, in order to protect the entire estate.

Ifrelatives or friends are sureties, the sureties should be for the full amount of the estate.

Where a surety company is used and the cost of the premiums presents an unreasonable

hardship, the court could reduce the amount of the bond to one-half the value ofthe

estate. The Public Guardian and Trustee does not propose this but puts it forward as an

alternative where there are unique circumstances.

Subsection (3) allows the court to require more than one surety. This provision could be

used where each proposed surety is of limited means. It might be unreasonable to insist

that one surety be responsible for the entire amount of the estate. For example, a surety

may not have assets to cover a $400,000 estate but four nieces or nephews might each be

able to indemnify losses of $1 00,000 each. This limits the liability of each surety but still

ensures that the adult is fully protected.

6

Subsection (4) allows the court to dispense with a bond in certain circumstances. It is

submitted that, by describing these specific circumstances, the legislative assembly

intended a stricter standard than in The Dependent Adults Act. While the court has the

final discretion to dispense with a bond, it is submitted that this should only be done in

the most unique circumstances.

In summary, it is submitted that the court should always require the applicant to file a

bond along with a statement of assets and that there is no good reason to dispense with

requiring the applicant to file a bond. Regarding sureties, the court, under subsection (1)

can determine the number of sureties and under subsection (2) the amount each would

secure. In determining sureties, the court can take into account the need for a surety

company.

Finally, the court may impose limitations or conditions concerning the scope of a

property guardian's authority. These restrictions may provide additional protection for an

adult's estate.

A recent fiat (Re Marion Popowich, unreported, Q.B. No. 359/2002, Judicial Centre of

Yorkton, Milliken, J., October 25,2002) illustrates the nature of the conditions available

for the court's consideration. In Popowich, the adult's estate, valued at about $400,000,

was comprised of a house, household goods, and significant liquid assets. Mr. Justice

Milliken ordered the applicant for a property guardianship order to file a bond for the

entire value of the estate. He then imposed several conditions concerning the scope of

the property guardian's authority including, but not limited to, the following:

7

• Limiting the amount of funds to be withdrawn from bank accounts withoutcourt approval;

• Restricting the alteration of the nature of investments;• Requiring a real estate appraisal of the house and a court order approving its

sale;• Requiring the sale of all household contents and vehicles by public auction or

alternatively, by other means for appraised values.

For a similar decision respecting restrictions on the scope of a property guardian's

authority, see Re Malinski (unreported; Q.B. No. 362/2002; Judicial Centre ofYorkton;

Milliken, J.; October 30,2002).

The Public Guardian and Trustee submits that, where appropriate, the court has the

discretion to set comparable restrictions when appointing a property guardian.

All ofwhich is respectfully submitted.

Ronald J. Kruzeniski Q.C.The Public Guardian and Trustee of Saskatchewan

)

APPENDIX "e"

Q.B. No.__ of__

IN THE QUEEN'S BENCHJUDICIAL CENTRE OF ASSINIBOIA

IN THE MATTER OF THE PROPERTY CO-DECISION-MAKER APPLICATION OFNAME OF ADULT

SUBMISSION ON BEHALF OF THE PUBLIC GUARDIAN AND TRUSTEE OFSASKATCHEWAN

The Public Guardian and Trustee of Saskatchewan respectfully submits that The Adult

Guardianship and Co-decision-making Act, S.S. 2000 c.A-5.3, (the "Act") requires an

applicant for a property co-decision-making order to provide a bond and one or more

sureties to secure the entire value of the adult's estate. The Public Guardian and

Trustee's Office submits that the Act requires the court to order the filing ofa bond unless

exceptional circumstances exit. Although the predecessor legislation, The Dependent

Adults Act S.S. 1989-90 c.D-25.1, gave the court wide discretion to dispense with the

requirement to provide a bond, the Act requires a more restrictive exercise ofthe court's

discretion. The purpose ofproviding security is clear. An adult's assets must be

protected to ensure that funds remain available for the adult's ongoing care. In a recent

fiat, Mr. Justice Laing confirmed these statements to be the general principles that

govern the interpretation and application of the bonding requirements in the Act (Re

Sotnikow, unreported, Q.B.G. No. 230512002, Judicial Centre of Saskatoon, Laing, J.,

February 6, 2003).

2

This legislation introduces a new concept, namely the appointment of a co-decision­

maker as defined in Clause 2(1) of the Act. An adult's capacity may be impaired to the

extent that the adult cannot manage his or her financial affairs in their entirety, but can

still participate in the decision-making process. Assuming it to be in the best interest of

the adult, the court may appoint a property co-decision-maker to assist the adult in

making financial and property decisions.

Comparable to a property guardian, a property co-decision-maker is duty bound to act

"diligently, in good faith [and] in the best interests ofthe adult and the adult's

estate..."(Section 50). Notwithstanding the adult's participation in the decision-making

process, the property co-decision-maker is placed under a clear and enforceable duty to

ensure that the financial decisions are "reasonable" and that "no loss to the adult's estate

is likely to result ..." (Section 42) from those decisions.

Based on the legal obligations imposed on a property co-decision-maker and the statutory

language used in Section 55 ofthe Act, the Public Guardian and Trustee submits that the

requirement for the filing of a bond and the provision of sureties equally applies to an

applicant seeking a property co-decision-making order. The applicant should provide a

bond and one or more sureties to cover the entire value of the adult's estate.

)

3

The Adult Guardianship and Co-decision-making Act provides as follows:

Undertaking required55(1) A person, other than the public trustee, who is appointed property co-decision­maker or property guardian shall file a bond, in the prescribed form, with the localregistrar of the court, undertaking to properly act as property co-decision-maker orproperty guardian for the adult, with any sureties that the court may require.

(2) Unless the court directs otherwise, the bond required by this section is to be in anamount that is equal to or greater than the sworn value ofthe adult's estate.

(3) The court may direct that more than one bond be given in order to limit the liability ofa surety to an amount that the court considers reasonable.

(4) The court may dispense with the filing ofa bond pursuant to subsection (1):(a) where the value of the estate does not exceed a prescribed amount;(b) where the nearest relatives and public trustee consent in writing; or(c) in any other situation the court considers appropriate.

Subsection (1) provides that the applicant shall file a bond in the prescribed form with

any sureties the court may require. It is submitted that this subsection makes it clear that,

while the court may determine the type and number of sureties required, a bond should

always be required.

The issue concerning the filing of a bond by an applicant was recently considered in the

matter ofNM W, Re (2002) 211 Sask. R. 298. In that case, the proposed property

guardian requested dispensation for the filing of a bond. Upon reviewing the relevant

provisions of the Act and its regulations, Madam Justice Rothery emphasized the need for

the filing ofa bond. In her fiat, she states:

"If! were to dispense with the filing ofthe bond, I must determine if this is a 'situationthe court considers appropriate' as outlined in s.55(4)(e) ofthe Act.

4

On the face of the application there appears to be no situation present that would lead thecourt to entertain a motion dispensing with filing the bond. Oppositely, this is the type ofsituation that lends itself to the need for one. The proposed property guardian is theadult's niece. There are four other next-of-kin, two nephews and two grand nieces. Allfive are residual beneficiaries to the adult's considerable estate. While the other fournext-of-kin see no need for a bond, the court must ensure the adult is protected, and fundsremain available for her ongoing care. Thus, reliefunder s.55(4)(c)ofthe Act is denied.

I must emphasize that my exercise of discretion in this case has nothing to do with anyconcern about Ms. K's integrity. There is none. Since the Public Guardian and Trusteedid not consent to an order dispensing with the bond, I must apply the law as stated. Nocompelling situation is present to relieve Ms. K of such requirement."

In addition to requiring the applicant to file a bond, the Public Guardian and Trustee

requests that the court require one or more sureties. It is often assumed that the reference

to "surety" means a surety company, but this is not the case. A surety can be a spouse,

relative, neighbor, friend or a surety company.

The financial position of the applicant and of each surety will determine how many

sureties are required to ensure that the entire estate is protected ifmisappropriation

occurs. If the combined financial position ofthe applicant and one surety is such that any

losses to the estate could be repaid, then it may not be necessary to require a second

surety. Ifthe financial resources of the surety are limited, it may be necessary to require

a second surety to ensure that the entire estate is protected. Therefore the Public

Guardian and Trustee requests that the applicant and each surety provide a financial

statement.

There is often concern that if a surety company is used, annual premiums will be charged

and this can be seen as an unnecessary expense for the estate. However, the Public

Guardian and Trustee's Office has seen cases where a property guardian has

5

misappropriated funds and the adult ends up having nothing or very little for living

expenses. When this occurs, and there is no bond or surety, there is no recourse.

Therefore, the cost of the surety company premium can be viewed as a very reasonable

insurance fee to ensure that the adult has assets to support himself or herself if the co-

decision-maker proves to be unreliable.

The Court recently confirmed the need for a proposed property guardian to provide a

bond and commercial surety as security for an adult's estate (Re Palidwor, unreported,

Q.B. No. 222/2002, Judicial Centre ofPrince Albert, Foley, J., June 5, 2002). In that

case, the adult's property consisted of a monthly pension and about $83,000 in a deposit

account. The applicant requested a property guardianship order without a bond. The

Court refused and ordered the filing of a bond together with a commercial surety, the

premiums to be charged against the adult's estate. In making the determination, the judge

highlighted the safeguards required to protect the adult's estate:

"Her role and stewardship are monitored by the statutory requirement of an annualaccounting, her good faith will be insured through the posting of a bond."

Further, the Public Guardian and Trustee requests that where an applicant's assets are

located outside of the jurisdiction of Saskatchewan, a surety company or surety resident

in Saskatchewan provide security to cover the entire value of the adult's estate. In these

circumstances, additional protection of the adult's estate is warranted. Otherwise, if

misappropriation occurs, the adult's position is further jeopardized as legal action outside

of Saskatchewan would be extremely costly, time-consuming and perhaps ultimately

unsuccessful.

6

This principle was endorsed in an unreported fiat ofMr. Justice Scheibel (Re Hintz,

unreported, Q.B. No. 83612002, Judicial Centre ofRegina, Scheibel, J., May 9,2002).

The proposed property guardian was an Alberta resident with his assets located in

Alberta. The Public Guardian and Trustee requested the applicant to file a bond and

secure the value of the adult's estate with a commercial surety or one or more sureties

resident in Saskatchewan. The applicant challenged the need for a commercial bond or

surety and cited the costs associated with it. The judge ordered the filing ofa commercial

bond on the following basis:

"In view of the significant value of the adult's assets a bond is to be filed - in partbecause the proposed guardian resides outside of the jurisdiction of this court."

Subsection (2) provides that the amount of the bond is to be equal to the value ofthe

estate. It is submitted that this is generally reasonable, in order to protect the entire estate.

If relatives or friends are sureties, the sureties should be for the full amount of the estate.

Where a surety company is used and the cost of the premiums presents an unreasonable

hardship, the court could reduce the amount of the bond to one-half the value of the

estate. The Public Guardian and Trustee does not propose this but puts it fOlWard as an

alternative where there are unique circumstances.

Subsection (3) allows the court to require more than one surety. This provision could be

used where each proposed surety is of limited means. It might be unreasonable to insist

that one surety be responsible for the entire amount of the estate. For example, a surety

7

may not have assets to cover a $400,000 estate but four nieces or nephews might each be

able to indemnify losses of $1 00,000 each. This limits the liability of each surety but still

ensures that the adult is fully protected.

Subsection (4) allows the court to dispense with a bond in certain circumstances. It is

submitted that, by describing these specific circumstances, the legislative assembly

intended a stricter standard than in The Dependent Adults Act. While the court has the

final discretion to dispense with a bond, it is submitted that this should only be done in

the most unique circumstances.

In summary, it is submitted that the court should always require the applicant for a

property co-decision-making order to file a bond along with a statement of assets. There

is no good reason to dispense with requiring the applicant to file a bond. Regarding

sureties, the court, under subsection (1) can determine the number of sureties and under

subsection (2) the amount each would secure. In determining sureties, the court can take

into account the need for a surety company.

Finally, the court may impose limitations or conditions concerning the scope of a

property co-decision-maker's authority. These restrictions may provide additional

protection for an adult's estate.

A recent fiat (Re Marion Popowich, unreported, Q.B. No. 359/2002, Judicial Centre of

Yorkton, Milliken, J., October 25,2002) illustrates the nature of the conditions available

for the court's consideration. In Popowich, the adult's estate, valued at about $400,000,

8

was comprised of a house, household goods, and significant liquid assets. Mr. Justice

Milliken ordered the applicant for a property guardianship order to file a bond for the

entire value of the estate. He then imposed several conditions concerning the scope of

the property guardian's authority including, but not limited to, the following:

• Limiting the amount of funds to be withdrawn from bank accounts withoutcourt approval;

• Restricting the alteration of the nature of investments;• Requiring a real estate appraisal of the house and a court order approving its

sale;• Requiring the sale of all household contents and vehicles by public auction or

alternatively, by other means for appraised values.

For a similar decision respecting restrictions on the scope of a property guardian's

authority, see Re Malinski (unreported; Q.B. No. 362/2002; Judicial Centre ofYorkton;

Milliken, J.; October 30,2002).

The Public Guardian and Trustee submits that the court may set comparable restrictions

when appointing a property co-decision-maker.

All of which is respectfully submitted.

Ronald J. Kruzeniski Q.C.The Public Guardian and Trustee of Saskatchewan

)I

APPENDIX "D"

FormM[Clause 3(m)]

In the Queen's Bench

Judicial Centre of-------Bond

We, (name o/property co-decision-maker or property guardian)of (address), and (name o/surety)of , (address), are jointly and severally bound to ajudge of the Courtof Queen's Bench for Saskatchewan at the Judicial Centre of in the amount of$ , to be paid to the judge at that judicial centre.

The condition of this obligation is that if the above-named property co-decision-maker orproperty guardian of the property of (adult's name) does all of thefollowing, then this obligation shall be void, but otherwise shall be and remain in full force and effect:

(a) make or cause to be made an accurate inventory of all the property of the adult that has orshall come into the possession or knowledge of the property co-decision-maker or propertyguardian, and provide the same to the local registrar of the Court of Queen's Bench at theJudicial Centre of and to the public trustee whenever required by law todo so;

(b) make or cause to be made an accurate annual accounting of all the property of the adult thathas or shall come into the possession or knowledge of the property co-decision-maker orproperty guardian, and provide the same to the local registrar of the Court of Queen's Bench atthe Judicial Centre of and to the public trustee whenever required by lawto do so;

(c) well and truly administer according to law all the property of the adult that has or shallcome into the possession or knowledge ofthe property co-decision-maker or property guardian.

Sealed with our seals and dated this__ day of , 20_

Name: -------------Address: ------------Phone: Fax:------ ------E-mail: -------------

Name: -------------Address:Phone: Fax:------ -----E-mail: -------------

(Signature 0/Property Co-decision-maker orProperty Guardian)

(Signature o/Surety)

)

APPENDIX "E"

FORMB

[Subsection 28(2)]

(occupation)

IN THE QUEEN'S BENCH JUDICIAL CENTRE OF _

IN THE ESTATE OF , LATE OF _

IN THE PROVINCE OF _

DECEASED.

NOTICE

(mailing address)

TO: PUBLIC TRUSTEE OR PROPERTY GUARDIAN (as the case may be)

Take notice that , of------:----::----:-:-----:-------

(telephone) (fax)

is making application to the court for grant of letters in the

estate of the deceased, who died at _

on the day of _

And further take notice that the deceased died (in)testate, survived by the following

competent adults entitled to share in the estate:

Name Address Relationshipto deceased

and survived by the following persons under the age of 18 years entitled to share in the

estate:

Name Name & addressofguardian

Relationshipto deceased

Date ofbirth

and survived by the following persons under the age of 18 years who may have a claim

against the estate pursuant to The Dependant's ReliefAct, 1996:

Name Name & addressofguardian

Relationshipto deceased

Date ofbirth

2

and survived by the following persons who are dependent adults as defined in The

Public Trustee Act and who are entitled to share in the estate:

Name Address Relationshipto deceased

Date ofbirth

and survived by the following persons who are dependent adults as defined in The

Public Trustee Act and who may have a claim against the estate pursuant to The

Dependant's ReliefAct, 1996 or The Matrimonial Property Act, 1997:

Name Address Relationshipto deceased

Date ofbirth

And further take notice that the following are attached to this notice:

(a) a statement ofthe assets of the deceased as shown on the application;

(b) a statement of the debts of the estate; and

(c) a copy of the Last Will and Testament of the deceased, if applicable.

DATED this day of _

This document was delivered by: _--;:::-:--_--:- _(Firm name)

(Address)

Address ofProperty Guardian

)

APPENDIX "F"

QUEEN'S BENCH RULES OF SASKATCHEWAN

B. Dependent Adults and Persons of Unsound Mind

R.46

46., (1) Unless otherwise ordered or provided, a person with respect to whom an order has been madeunder The Dependent Adults Act, or a person under a mental disability, other than a minor, maycommence, continue or defend an action by a litigation guardian.

(2) For the purposes of this rule, "litigation guardian" means:(a) a property guardian appointed pursuant to The Dependent Adults Act with authority to

commence, defend, compromise or settle any legal proceeding that relates to the estate of thedependent adult;

(b) a personal guardian appointed pursuant to The Dependent Adults Act with the authority tocommence, defend, compromise or settle any legal proceeding that does not relate to theestate of the dependent adult;

(c) the property guardian of a person in respect of whom a certificate of incompetence has beenissued and is in effect pursuant to The Mentally Disordered Persons Act;

(d) until the court orders otherwise;(i) the Public Trustee; or(ii) any other person the court considers suitable;who has been served pursuant to section 32 of The Public Trustee Act on behalf of a personwho may be of unsound mind and who has no guardian with authority to commence, defend,compromise or settle any legal proceeding relating to the person or the estate of the person, asthe case may be;

(e) the litigation guardian of a minor who has reached the age of majority; or(f) any other person appointed by the court.

See also A. 60,61; B.C. 6(1), (2), (4)-(9); N.B. 7.01-7.03; N.S. 6.01-6.03; O. 7.01-7.04; F.C.C. 1700. (B.C., N.B., N.S.and O. require that the litigation guardian act by a solicitor.)New rule in 1983, derived from 1961 rule 60; amended 1985 and 1991.Re personal or property guardian with authority re legal proceedings, see The Dependent Adults Act. Re public trusteeas property guardian of person in respect of whom a certificate of incompetence has been issued, see ss. 29-31, 38 ofThe Public Tnlstee Act and ss. 38.1-38.9 of The Mentally Disordered Persons Act. By s. 32 of The Public Tnlstee Act,a person ofunsound mind who has no property guardian may be served and from the time of service, the Public Trusteeor other person served shaH be the guardian ad litem until the court orders otherwise. The Public Trustee is successorin office to The Administrator of Estates.

The specific provision in s. 41 of The Dependent Adults Act that application can be made by the dependent adultoverrides the general provision of rule 46 requiring a litigation guardian unless otherwise ordered: Wright, Re (1999),182 Sask. R. 104 (Q.B.).

Our civil procedure does not contemplate the trial of an issue on a person's competency to bring a civil law suit-ourrules contemplate only what should happen when a person is ruled incompetent under provincial statutes which exist toprovide the procedures and procedural safeguards to make such determinations. In circumstances where the evidencewas overwhelming that a party to civil litigation was mentally incompetent without having been certified as such, thebetter procedure would be for the court to refer the question pursuant to s. 38.3 of The Mentally Disordered PersonsAct: B. (J.E.) v. Canada (Attorney Genera!), 1999 SKQB 209, 187 Sask. R. 70.

The purpose of this rule is to ensure that a dependent adult or person of unsound mind is properly and fairly representedin any litigation. The criteria to be used in appointing a litigation guardian are; I) the incompetent is unable to act forhimselt; 2) evidence verified under oath as to incompetent's mental condition and inability to act, e.g., affidavits of twophysicians; 3) proposed litigation guardian should be qualified to act, prepared to act, and indifferent as to outcome (ifnot, interest should be plainly declared); 4) there should be some evidence to support the claim being made; 5) consentsof next-of-kin should be got or their absence explained; 6) if the applicant has a personal representative, an explanationwhy that person is not bringing proceedings: Szwydky v. Magiera (1988), [1989] I W.W.R. 165,71 Sask. R. 273, 30C.P.c. (2d) 137 (Q.B.). See also Schikosky v. Schikosky, [1995] TWL QB95370 (Sask. Q.B.); Regina & DistrictAssociation for Community Living Inc. v. Saskatchewan (Public Trustee) (1992), 88 D.L.R. (4th) 560, 99 Susko R. 274(Q.B.).

It is desirable that a litigation guardian be a relation, connection, or friend of the family and not a mere volunteer, whointerferes for their own purposes rather than for the advantage of the person under the disability: Bousquet, Re (1989),77 Sask. R. 77, 34 C.P.C. (2d) 293 (Q.B.).

QUEEN'S BENCH RULES OF SASKATCHEWAN R.46

Applicant which was a non-profit, charitable corporation designed to provide advocacy and support to families havingas a member a mentally handicapped person, and which had no proprietary interest in the outcome of the action,appointed litigation guardian: Regina & District Association for Community Living fnc. v. Saskatchewan (PublicTnLstee) (1992),88 D.L.R. (4th) 560, 99 Sask. R. 274 (Q.B.).

Where an action was commenced without appointment of litigation guardian, the court stayed the proceedings to allowtime to appoint a litigation guardian: Szwydky v. Magiera (1988), [1989] I W.W.R. 165,71 Sask. R. 273, 30 C.P.c.(2d) 137 (Q.B.).

There is no procedure by which the court on its own initiative can obtain medical evidence re whether a party has thelegal capacity to conduct litigation, nor is there any procedure by which one party can seek a detennination of the

Q.B.G.Xo.2305

"F'[Z'_

APPENDIX ''G'"~

...... -.

fEB 1 0 2003

IN mE QUEEN'S BENCH

JUDICIAL CENTRE OF SASKATOON

'7'

2003 SKQB61

A.D. 2002J..S.

RE APPLICATION PURSUANT TO THE ADULTGUARDIANSHIPAND CO-DEClSION-MAKlNG ACT, 8.S. 2000, c. A-5.3, AS AMENDED.

"

9.1. Kendall

~Chomyn

FIAT

February 6t 2003

"

for the applicants, Joanne Marie Schappert andThomas Mitchell Sotnikow

for the respondent, the Public Trustee

LAINGJ.

[1] This application by two siblings to act as personal decision-maker and

property guardian for their 68-year old mother is opposed by the Public Trustee insofar

as they request they be appointed property guardians without the necessity of filing a

bond. This is one ofa number ofsimilarly contested cases by the Public Trustee since the

new Adult Guardianship and Co-decision-making Act, 8.S. 2000, c. A-5.3, was

proclaimed on July 1S t 2001 (hereinafter referred to as the "Act").

[2] Under the previous legislation, The Dependent Adults Act, 8.S. 1989-90,

c. n-25.1, s. 27, stated in part:

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27(1).Unless o~erwise ordered by the court, the property~ardlanshal.l gIve security in any amount that the court maydIrect and with those sureties that the judge may approvefor: '

(a) duly accounting once in every year or more often ifrequired by the court; and '(b) filing the inventory required pursuant to section 26.

,(2) The property guardian shall:

(a) cause the security required by subsection (1) to betaken by bond in the name of the dependent adult; and(b) file the security mentioned in clause (a) in the officeofthe local registrar.

(3) On the application by the property guardian or anyperson having, in the opinion of the court, a sufficientinterest, the court may reduce or increase the amount ofsecurity to be given by the property guardian.

Under the foregoing legislation the public trustee was not served with notices of

application for property guardianship and did not intervene in such applications. The

practice under the foregoing legislation for when a bond was required was very much ad

hoc. If the applicant was from out of the Province, or was not a beneficiary under the

dependent adult's will, or ifthere was opposition within the family to t:he appointment,

bonds were usually required. However, in the writer's experience, where all of the

potential beneficiaries under the will consented to the appointment without a bond, the

practice was not to require a bond.

[3] The provision with respect to the requirement ofa bond under the new Act

is contained in s. 55 which states as follows:

55(1) A person, other than the public trustee, who isappointed property co-decision-maker or property guardian

sha.1l file a bond, in the prescribed form, with the localregIst~ .ofthe court, undertaking to properly act as propertyco-decIsIon-maker or property guardian for the adult with. ,any suretIes that the court may require.

(2) Unless the court directs otherwise, the bond required bythis section is to be in an amount that is equal to or greaterthan the sworn.value o[the adult's estate.

(3) The court may direct that more than one bond be givenin order to limit the liability ofa surety to an amount that thecourt considers reasonable.

(4) The court may dispense with the filing of a bondpursuant to subsection (1):

(a) where the value of the estate does not exceed aprescribed amount;(b) where the nearest relatives and public trustee consentin writing; or(c) in any other situation the court considers appropriate.

From the foregoing section, it will be observed:

(1) Unlike the previous legislation, the requirement for a bond is mandatory as

indicated by the use ofthe word "shall", unless an applicant can qualify for

dispensation ofthe necessity ofa bond under s. 55(4).

(3) Under s. 55(4)(b), it is no longer adequate for the nearest relatives to

consent to the appointment of a property guardian. Unless the public

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trustee also consents this is not a basis for dispensing with a bond.

(4) The only discretion provided to the court is in s. 55(4)(c) where the court

may dispense with a bond "in any other situation the court considers

appropriate".

,

[4] Reading the section as a whole, and bearing in mind both its purpose, its

context, and its historical evolution, the word "appropriate" means suitable or appropriate

for the end in view, which is to ensure the adult's estate remains intact during the

guardianship, or can be restored in the event it does not.

[5] The arguments advanced by applicants generally and these applicants in

opposition to the requirement for a bond are three-fold:

(l) A commercial bond is expensive. The court has heard submissions that

some bonding companies are requiring a five-year premium payable in

advance on the basis the risk is too great for a one-year premium.

(2) In many cases the proposed applicants do not have adequate assets which

equal or exceed the value of the estate to be administered. In addition,

privacy concerns are raised about the necessity ofhaving to file a financial

statement on a public record in support ofthe suretyship. A further point

is made that the majority of applicants are siblings, who are mostly

married, and own whatever property they own jointly with their spouse. In

most cases the most significant asset is the residence or the home quarter

section, which is exempt under The Exemptions Act, R.S.S. 1978, c. E-14,

-5-

ofthe Province, and normally would not be accepted as security for a bond.

(3) The court has the power under s. 47(1)(a) to place any limitations or

conditions on the guardianship that it considers appropriate, and may also

require the property guardian to have the appointment reviewed within a

specified period of time. In addition, pursuant to s. 54 there is a

requirement that the guardian provide an annual accounting to the court

and to the public trustee, which the public trustee may investigate to ensure

the accuracy ofthe same. The position is that the court should impose more

strict conditions where the applicant is seeking to be appointed without the

necessity of a bond.

[6] The position ofthe Public Trustee is that its role is to protect the estate of

the subject adult, and to ensure that the money in the estate is ahvays available for the

adult's ongoing care. The Public Trustee states there have been enough defalcations by

previously appointed property guardians, which is why it was given a larger role to play

in the new legislation (powers of the public trustee contained in s. 37) and why the

discretion ofthe court to appoint a property guardian without the necessity ofa bond was

very much restricted in the new legislation.

[7] One answer to the foregoing arguments advanced by applicants, is to

request the public trustee to become the property guardian pursuant to s. 30(b). The fees

charged by the public trustee are set out in Regulation 1 to The Public Guardian and

Trustee Act, R.S.S. 1978, c. P-36.3, in s. 16. While there is a cost associated with

involving the public trustee as property guardian, it should be pointed out that it is not

uncommon pursuant to s. 51 of the Act for the court to be requested to set a fee for

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service to be paid from time to time to the property guardian out ofthe estate ofthe adult.

[8] °What is apparent to me based on the arguments advanced in this matter and

other recent files, is that the public trustee should be consulted in advance of the court

application being served and filed as to whether there is any common ground on the type

ofsurety that would be acceptable, in~luding the financial disclosure required to support

the same, or to determine if in the public trustee's opinion it is appropriate to dispense

with a bond in the circumstances with the result the public trustee is prepared to consent

to the application. Consulting with the public trustee in advance will cenainly eliminate

significant costs for the applicants in having to litigate every application with the public

trustee. lfthe public trustee is not able to accommodate the proposal of the applicants,

then the court application may be brought. Whether prior consultation with the public

trustee takes place or not, the onus is on a person making an application for property

guardianship without the necessity of a bond to persuade the court that it is appropriate,

bearing in mind the object ofthe legislation which is to ensure that the adult's estate will

not be dissipated during the guardianship, or if it is, that it may be restored.

[9] With respect to the present application, the two applicants are two ofsix

siblings ofthe adult, Mrs. Sotnikow, who is 68-years old and who suffers from what one

doctor describes as severe Alzheimer's disease. The other doctor states her "decision

making ability has deteriorated to the point where she can no longer follow simple

instructions", and her "decision making ability will never improve~'. Mrs. Sotnikow is a

resident in a private special care home in Saskatoon. The application does not indicate

the cost of the monthly care. Mrs. Sotnikow's monthly income is $1,115.17 made up of

an Old Age Security payment of $740.65 and a Canada Pension Plan payment of

$374.52. There is no estimate of life expectancy included in the application. The sworn

-7-

value ofMrs. Sotnikowts estate is $124,684.41 made up ofapproximately of$36t500.00

in liquid assetSt and her house which is valued at $85tOOO.OO. No doubt it would be

reasonable to sell the house at some point in time.

[10] One ofthe applicants, Ms. Schappert, has been administering the affairs of

her mother under a power of attorney... dated February 27, 1998. Mrs. Sotnikowts will

divides her estate equally amongst her six children. and the four children who are not

applicants consent to the application without a necessity ofa bond.

[11] On the foregoing facts, I am not able to conclude this is an appropriate case

to dispense with a bond. This conclusion is not a reflection on the integrity of 'the

applicants which I have no reason to doubt. The fact is this is a routine application by

siblings, who are most usually the applicants, and to consider this an appropriate case to

dispense with a bond would be to largely negate the mandatory requirement for the filing

of a bond contained in s. 55(1). Almost every application would so qualify, because in

most cases the nearest relatives always consent.

e application to be appointed personal decision-makers is in order, and

an order may issue with the authorities identified in the draft order submitted.

[13] With respect to the application for property guardianship no order is made.

Leave is granted to the applicants to supplement the existing material should they see fit

to do so.