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.