It is always a difficult situation when a loved one develops some form of dementia and gradually slips into incapacity. It is even more troubling when well-meaning family members end up in a legal dispute over who should assume legal responsibility for the financial and personal care of the patient. In recent years, Canadian legislatures have passed laws intended to make this troubled area easier to plan for and navigate. In B.C., this has meant a complete overhaul of the Patients Property Act and the Representation Agreement Act. These statutes, among others, provide several tools to help. However, no matter how well intentioned these legal solutions may be, the underlying problem can still lead to bitter legal squabbles.
The recent decision in Dawes v. Dawes 2012 BCSC 1323 illustrates the unavoidability of such conflict, despite the use of the legislative tools available. Mrs. Dawes had been slowly descending into dementia and placing greater strains on her husband’s ability to care for her and her financial affairs. Though she had been struggling, at one point Mrs. Dawes arrange with a lawyer to sign a representation agreement that provided one of her three children, her daughter Ms. Davidson, with authority to be her representative and make the required health and financial decisions on her behalf. Mrs. Dawes did not tell anyone else she had done this. She took this step as, among other reasons, she was afraid her family would put her in a “funny farm” rather than care for her.
Some time later, the family met to discuss how best to care for Mrs. Dawes in her worsening state. The family was divided over what to do. There were regrettable differences over what was in Mrs. Dawes’ best interests and who most accurately understood her likely wishes. Ultimately, Mr. Dawes applied to court for a declaration that his wife was incapable of managing her person and estate and appointing him as committee. The petition was opposed by Ms. Davidson on the grounds that she was the appropriate committee, having been appointed by her mother as her representative.
By the time the matter came before the Court, there was no longer any dispute that Mrs. Dawes was legally incapable of looking after herself or her financial affairs. The Court had to wrestle with who among the well meaning family members was the most appropriate committee. Much of the case centered on the representation agreement and whether Mrs. Dawes had been capable of signing it in the first place. After reviewing the evidence, including affidavits from the lawyer who had drafted the representation agreement and Mrs. Dawes geriatric specialist at the time, it was found that Mrs. Dawes had been capable when she signed the representation agreement. It was valid and the authority granted to Ms. Davidson was lawful.
However, the Patients Property Act (the “PPA”) provides that once a patient is declared incompetent, every representation agreement made by them is terminated, subject to a residual discretion in the court to allow the representative to continue to act. The issue became who, as between Mr. Dawes and Ms. Davidson, was the most appropriate committee. While the PPA does not set out a test for determining the continued effectiveness of a representation agreement, the Court articulated several criteria to be considered. They include the original circumstances of the agreements execution, the scope of the agreement and the basis of the application to set it aside. Within these criteria, the Court made a number of findings:
- Mrs. Dawes had the capacity to execute the representation agreement though she was suffering “on-going mental health concerns”. However, she was now entirely incapable of managing her person or affairs.
- The choice of Ms. Davidson as the representative was made without consultation and at a time Mrs. Dawes continued to live with her husband who was her primary caregiver, whatever the state of their relationship may have been. Mrs. Dawes had not taken any steps to end her marriage or change her living arrangements.
- Ms. Davidson’s proposed financial management was a departure from the Dawes previous conduct and intentions. Given Mr. Dawes continuing financial support of his wife, this change was also unnecessary.
The Court then considered who best to appoint as Mrs. Dawes’ committee. Such an appointment must be in the patient’s best interest. The committee must have knowledge and understanding of the patient’s situation and needs. While the Court attributed to both Ms. Davidson and Mr. Dawes a genuine belief in their views of what was in Ms. Dawes’ best interests, the final decision favoured Mr. Dawes. The deciding element was Ms. Davidson’s apparent inability to consider or respect the views of other family members when they differed from her own. Rather than consider these views, she instead openly doubted the underlying motivations. This conclusion was supported by various professional opinions about Mrs. Dawes that mirrored the positions and views of the other family members. Because of concerns over Mr. Dawes health, the Court ultimately appointed co-committees: Mr. Dawes and one of the other children.
In addition to being a cautionary tale about the perils of deteriorating family relationships, this case also underscores the Court’s overriding concern for the welfare of an incapable patient. In deciding who best to care for such individuals, the Court will look at a wide spectrum of evidence and, in the end, the objective reasonableness of the parties. This means it is better to work collaboratively and by consensus when caring for an incapable patient. Learn to listen and compromise. Do not blindly advocate your own personal views to the exclusion of all others.
Peter is a litigator with a wide range of experience, practising for over 30 years in Vancouver. For a number of years he practised criminal law before resuming civil and commercial litigation, including claims involving ...
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