Month: October 2017

An important part of estate and legal planning is to appoint substitute decision-makers.

One of these appointments is to choose an executor in your Will. This person manages your estate after you die and distributes your property to the beneficiaries according to your instructions. The executor has a lot of responsibility, but also a lot of opportunity for misconduct, because this person has control of the estate until it is settled.

In BC, there is no supervision of executors. If there is a problem with the way an executor is managing an estate, one of the beneficiaries has to take them to court. The legal process is slow, complicated and expensive. There are no ‘pro bono’ or volunteer legal services for beneficiaries, while the executor can use estate funds to pay for a lawyer. So unscrupulous executors are rarely caught or punished, and it is very important to appoint a reliable person.

There are other types of appointments for substitute decision-makers that are separate from the executor of a Will, and not a part of estate planning because they take effect during a person’s lifetime. But again the selection of a trustworthy person is critical.

For these lifetime appointments, as outlined in the Law Students’ Legal Advice Planning Manual, Chapter 15 – Adult Guardianship and Substitute Decision-Making:  “[t]he law allows a capable adult to appoint a substitute decision-maker for financial or health care decisions in two types of legal documents: Enduring Power of Attorney (for financial decisions only); and Representation Agreement (for health care consent, personal care decisions, and routine financial decision-making). The law also allows a capable adult to provide instructions giving or refusing consent to specific health care in an Advance Directive.”

Also during their lifetime, if an adult is declared incapable and needs a substitute decision-maker, the BC Supreme Court is authorized to appoint a legal guardian for them.

The prospective guardian petitions the court for appointment in an action called a Committeeship. The incapable adult and immediate family members are notified by legal service but have no right for representation in the proceedings. Once the Court appoints the guardian, costs for the action are typically charged against the assets of the incapable adult as the unsuccessful party.

Obviously, Committeships create opportunities for financial and elder abuse.

In BC, legal guardians for incapable adults are supervised by the Public Guardian and Trustee (“PGT”) and case workers monitor each situation. But there is no external oversight on case workers and no reporting or public accountability on the outcomes for people under adult guardianship.

With a rising demographic in the world of older adults, many experiencing mental decline with age, problems of financial-legal abuse against this group and their estates is a growing concern internationally.

Other jurisdictions are ahead of Canada and BC in recognizing the problems and creating a framework of standards, oversight, and accountability on substitute decision-makers and legal guardians.

For example, the protective framework for seniors and their families in the USA includes:

• The National Centre on Elder Abuse (NCEA), directed by the US Administration on Aging, is a resource for policy makers, social service and health care practitioners, the justice system, researchers, advocates, and families.
• The National Guardianship Association (NGA) operates to certify, investigate and regulate guardians and expose abuse.
• Now available as a 2013 – 4th Edition,  the NGA guardianship Standards of Practice [.pdf – 30 pp.] was first published in 2000.
• The Centre for Guardianship Certification  began as a program of the NGA, and then expanded with a separate mandate and governance. The National Guardianship Network has a list of Member Organizations working on a national action plan to protect incapable adults.
• In the legal profession, the American Bar Association website has a page offering Elder Abuse resources and a resource section on Guardianship Law & Practice
• In healthcare, the American College of Emergency Physicians (ACEP) website offers public health resources on violence including ‘Recognition and Management of Elder Abuse‘ from a policy established in 1999. ACEP also publishes Geriatric Emergency Department Guidelines with concerns for elder abuse mentioned throughout. The template reporting form records and tracks information and statistics on patient screening for elder abuse.

This type of programming provides the basis for law reform and higher standards for conduct in BC to better protect vulnerable seniors and their assets.

In October, BullyFreeBC is posting articles advocating
law reform to address concerns for seniors in BC.
If you have a comment or a story to share,
email info@bullyfreebc.ca.

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For several years I have been researching the legal framework for wills and estates in BC as a reluctant experiential learner.  My mother died in 2015, and since then the family has been going through an odyssey of negotiations and court dates to settle her small estate, administered according to a Will that was written under a previous legal framework and probated under new and improved legislation.

At the conclusion of this long process, problems are still not resolved and the beneficiaries are finding that not much remains now that the self-governing professionals in charge of the estate have taken their fees.

And settlement of the estate was the last stage of many after more than a decade of legal planning difficulties for our family that started with a weird Power of Attorney package and then a Representation Agreement signed after several incapacity diagnoses. All of these documents were prepared for a frail and easily confused older client by lawyers specializing in the field of elder law.

The new legislation for elders and estates law, crafted to address such difficulties, has been in effect since April 2014 when the BC government passed the Wills, Estates and Succession Act [SBC 2009, Chapter 13], known as WESA.  Enactment of WESA brought sweeping changes to an estate planning and administration framework that had been in place for decades. Several older Acts disappeared with WESA, including the Estate Administration Act, the Probate Recognition Act, the Wills Act, and the Wills Variation Act, and the new legislation required amendments to more than 40 other Acts.

But from ongoing discussions with people in the demographic of older adult children with increasingly vulnerable parents, it seems many families are finding that the legal framework in BC, despite changes introduced by WESA, still does not serve or protect the human rights of seniors.  Problems include lack of good legal and care decisions for seniors, financial needs of family members improperly addressed while the estate is in the hands of one elderly spouse who survives the other, then wastage in the course of maintenance, consolidation, administration and distribution of the final estate when both parents are gone.

The situation is particularly worrisome in BC given the generation of land-owning seniors who hold wealth in equity and who might have more than one generation of cash-strapped offspring waiting impatiently to access the assets.  This province could be facing a crisis of financial elder abuse as part of borderline estate fraud, as problems emerge like ticking time bombs placed in packages of badly devised personal planning documents for BC seniors with estates to pass on when they do.

The decisions involved in creating these legal planning documents are critically important to each person and family.  But this is generally not understood or appreciated by the client, who might have no other contact with legal paperwork.  Easy mistakes like appointing the wrong person as a substitute decision maker, giving that person too much authority with no oversight and remedy, or creating too much latitude for the trustees of an estate – these decisions and choices made quickly and perhaps under time pressure during a legal appointment can change the fate and fortunes of a family forever.

People need to understand that they could be determining the quality of the last years of their life and perhaps their right to life when they sign on the line in a lawyer’s office, or even worse on the last page of a form from the printer.

The professionals in charge of these arrangements – the financial and legal professionals who manage the wills and estate business in BC – have no stake in the decisions made, so long as the documents resulting are properly prepared and signed.  From their perspective, any estate plan is a good plan so long as it can be legally enforced in a court of law, and doesn’t use online forms.

This lack of human rights oversight on elder and estates law needs to change, in order to reduce the opportunities for fraud and to protect against abuses of elderly people and their property.

And the risk has increased with the new June 2016 physician-assisted dying legislation in Canada [link to Bill C-14 Royal Assent] introducing the possibility of seniors being encouraged or persuaded to ask for an assisted death.  The conflicts of interest and temptations for beneficiaries created by assisted dying legislation could increase further if a current campaign succeeds in allowing alternative decision makers, who might possibly inherit under a Will, to make this most final of decisions for another person.

These gaps and snares in the legal framework must be fixed through law reform, because the  current state of elder and estates law in BC creates too many opportunities for abuse, not only of property but more critically, of the rights, well-being and safety of people entering the final and most vulnerable phase of their lives.