Legal Report: wills and estates

Documents drawn up in one jurisdiction are practically impossible to enforce either inter-provincially or internationally. The case of one Nova Scotia woman sadly illustrates the problem.



In an aging population, disputes over who provides care for elderly relatives are on the increase. Some recent cases of granny-napping have shown that powers of attorney, the most commonly used planning document, are as toothless as some of the people they are trying to protect if those people are moved out of the jurisdiction. Without adequate mechanisms for inter-provincial and international recognition, the case of planning documents being found dead at the border may become even more common.

For those lawyers who practise in the area of elder law, disputes over relocating mentally feeble or incapable adults are remarkably frequent. Ian Hull, of Hull and Hull LLP in Toronto, calls it “the fight over the body before it’s dead.”

“You don’t see a lot of people taken out of the jurisdiction,” says Hull, “but people come and see me all the time about moving mom from Milton to Peterborough. The truth is it can be a hot button if there is a dispute between two healthy children and they want to escalate it or act vengefully or disruptively.” The issue also raises its ugly head where there are allegations of mistreatment or abuse. When the competing caregivers live in different locations, there is a problem with enforcing any arrangements made prior to the loss of capacity.

A classic example of this occurred in the case of Helena Munroe in Nova Scotia, who was Scottish by birth but was habitually resident with her Canadian husband in Canada. Munroe was a lecturer in cognitive psychology at Dalhousie University in Halifax with a clinical specialty in Alzheimer’s disease. Sadly, she fell victim to the disease herself, and with full knowledge of what lay ahead, prepared a power of attorney and a health-care directive in favour of her husband, Sandy, and named her friend and fellow Alzheimer’s specialist Carol Sifton in the alternative.

During a visit by her brother from Scotland in November 2005, under the guise of taking her out to lunch, she was flown back to Scotland with the use of a passport that the brother had obtained on a previous visit. It was 19 months before her husband saw her again, despite his energetic pursuit of her return. After spending almost two years fighting to get his wife back, Sandy Munroe got word in mid-September that his wife could soon be returning home.

Sandy’s first efforts were aimed at criminal charges, but his plea that the brother be charged with kidnapping fell on deaf ears. Munroe was legally deemed to be competent and there was no evidence that she was unwilling to go. The brother claimed she was unhappy in Canada and agreed to go when asked if she wanted to see her family. Her husband, Sifton, and the local doctors concur that she was in no state to make such a decision, comparing it to offering a child a Christmas present.

Sandy made an application to validate his power of attorney in the Nova Scotia Supreme Court on Dec. 22, 2006. Justice Glen McDougall confirmed the power of attorney and the authority to consent to medical treatment, and appointed Sandy Munroe, or alternatively Mary Sifton, as guardian of the estate and person of Helena Munroe pursuant to the Hospitals Act. However, Helena is now an adult in protective custody in Britain and any Canadian court proceedings are on hold while the British authorities decide her fate. In September, a British panel, formed under a law designed to protect vulnerable adults, determined that Sandy is his wife’s official caregiver and decision maker, setting the stage for her return to Nova Scotia.

Jeanne Desveaux of Upper Tantallon, N.S., and Ron Meagher of Halifax represented Sandy on the guardianship application. Apart from being intimately involved in the Munroe case, Desveaux is also the chairwoman of the Canadian Bar Association’s elder law section. She says the case identifies a classic problem with representing clients of diminished capacity: most existing laws assume competence and that the commonly used arrangements for such people are not always effective.

“Powers of attorney, which are commonly used to avoid the expense of a guardianship application, only speak to property,” says Desveaux. “In 99.9 per cent of cases, a power of attorney may be all we need, but in that 0.1 per cent where there is a disgruntled family member, or someone who uses it in an abusive way, it may not be able to do what you want it to do.

Lawyers and individuals need to be aware of the legislation in their own particular province and then tailor a document to suit the individual,” says Desveaux. “One size does not fit all.”

Unfortunately, even with the most effective document available locally, cross-border recognition and enforcement is only in its infancy. The general trend in Canada is to have documents made in one jurisdiction recognized in another, but most of the reciprocal-orders legislation in Canada is internal. Professor Robert Gordon, director of the School of Criminology at Simon Fraser University in Vancouver, believes local legislation could be adapted to international situations through the regulations, which could list countries whose powers of attorney are deemed to have standing, but there is no sign of this happening yet.

There was a prospect of new federal legislation while Nova Scotia MP Peter MacKay, the former Foreign Affairs Minister, was taking a personal interest, but it remains to be seen if anything will come of that now.

Internationally, the Hague Convention on International Protection of Adults was struck in January 2000. Only Germany, the Netherlands, France, Switzerland, and the United Kingdom have signed it, although almost 40 countries participated in the negotiations. Britain has ratified the convention in respect of Scotland and has plans to ratify it in England and Wales.

Hague Convention 35 sets up measures to determine which jurisdiction has authority to take steps to protect the person or property of an adult who, by reason of an impairment or insufficiency of their personal faculties, is not in a position to protect his or her interests. The habitual residence of the adult is specified as the place that has jurisdiction, rather than the place where they are at the time of the application. It also provides for the recognition and enforcement of such measures in all contracting states.

Jay Chalke, the public guardian and trustee of British Columbia who was a delegate to the convention, believes it could be helpful in the future with cases like Helena Munroe’s. “It will probably be a while before there is any momentum behind the convention,” he says. “It hasn’t been a priority so far in Canada, although global legal solutions to address the problem of cross-border movements of vulnerable adults is an emerging issue.”

In Canada, provinces must ratify the convention and then the federal government must file papers with the convention to make it effective. So far, Saskatchewan is the only province to do so, and Chalke says the federal government won’t take that necessary second step until more provinces are on board. While almost all of the provinces have recently reformed their guardianship laws or are in the process of doing so, the Hague Convention has not been part of the process. Gordon has been active in advising many of the provinces on their new legislation, and is also involved in a project to assist countries seeking admission to the European Union, which must have guardianship legislation. “I don’t see any jurisdiction legislating in a way consistent with the Hague Convention,” he observes. “No international standards are being applied.”

Chalke says the thing most likely to get Canada to speed up its efforts will be ratification by the United States, where it is under consideration. The issue was brought to public notice there by the Orshansky kidnapping case in 2001. Mollie Orshansky was a single woman, well known in the federal government for creating the poverty line in the 1960s. As her old age approached, she went to the trouble of giving a health-care proxy to her niece in New York, creating a trust with her sister as co-trustee, and even buying a condominium near her sisters and nieces that she planned to live in. All this preparation was ignored when she was admitted to hospital in Washington, D.C., and the hospital filed for guardianship under Adult Protective Service legislation.

When her niece could get no one to pay attention to her power of attorney, and with her aunt restrained, heavily medicated, and deteriorating rapidly, she wheeled aunty out of the hospital, flew her to New York, and filed for guardianship there. The judge who had appointed a guardian tried to compel her to return, even enlisting the help of the New York City police, and the guardian transferred huge amounts of money from the trust with which to fight the family.

Unlike the Munroe case, the niece was the agent under the power of attorney. The similarity between the cases is that the document represented the wishes of a well-educated woman who had the foresight to plan ahead, only to have it go awry. In Orshansky, the Court of Appeal in Washington overturned the lower court’s decision and charged the judge with abuse of discretion. The case generated a Senate committee hearing and a report by the government accountability committee.

Even more recently, the National Conference of Commissioners on Uniform State Laws has approved the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act to try to bring into line America’s 51 different guardianship laws. The next step may be the adoption of the Hague Convention.

Back above the border, the provinces are getting their house in order, so there should be something effective to enforce if reciprocal recognition legislation ever comes into play. Gordon of Simon Fraser sees the recent legislative reforms in Canada as taking the residue of 19th century lunacy law and turning it into something more humane. He sees the most significant initiative in the new legislation as the variety of planning documents. “There are two types: proxy directives, which appoint a person as a substitute decision maker, and instructional advanced directives, also known as living wills, which outline the person’s wishes.” Some jurisdictions allow both so that a person has someone to speak on their behalf and written instructions to guide them.

Find out what are living wills in Canada in this article.

When asked if registration of the documents — to provide a public record that the person is now incompetent — is part of the new systems, Gordon replies, “I wish.”

“The only jurisdiction with a registration process is Quebec, where a mandate has to be approved before it is used. That’s the British model too. The complaint is that it bungs up the system. It doesn’t have the level of informality you need and it doesn’t stop abuses. There’s always a counterpoint to a good idea.”

Ann Soden, executive director of the National Institute of Law, Policy, and Aging, in Montreal, agrees. “You might think the document has real strength because it’s gone through this process, but nobody goes around waving mandates. The process is very expensive and very few mandates are homologated.” She does not think a mandate would have prevented the Munroe situation, which she sees as an arrogant one off. “It might have given someone cause to pause, if they were hell-bent on taking her away.”

In contrast, British Columbia’s proposed legislation has gone for maximum accessibility. “The fewer restrictions the better, so that more people will draw them up,” says Gordon. “Safeguards exist in the form of the ethical requirements of health-care providers. They’re not going to allow anything inappropriate. Banks are also increasingly alert to abuses of powers of attorney.”

A tool that may have been of more assistance in the Munroe case is default legislation, which is also appearing in provincial statute books. It provides that, in the absence of legal documents, there is a hierarchy of decision makers with the spouse at the apex. “It is codifying the existing practice where health-care providers turn to a list of people in priority along genetic lines,” says Gordon. “It is narrowly focused on decisions to receive health care or to be admitted to a care facility.”

There is some question whether this legislation comes under the umbrella of the Hague Convention. “Theoretically, it does,” says Chalk, “but it would be a complicated thing to have that law apply overseas. It would be more feasible and likely that a power of attorney or representation agreement would be enforced.”

Desveaux says the public guardian could play a greater role in international disputes. They already have large caseloads of seniors, who are the group most likely to travel overseas and to own international assets. While public guardians are generally reluctant to make personal care decisions where family members are a safe option, Desveaux says they may have to get more involved in obtaining orders to restrict and hold passports.

Meanwhile, Helena Munroe remains in Britain. “The fact that the British authorities are taking so long to sort it out is really troublesome,” says Soden. “I trust Mr. Munroe’s new legal status as guardian to his wife, as duly reviewed and ordered pursuant to the law of Ms. Munroe’s most closely connected domicile, as well as a consideration of Ms. Munroe’s wishes, lifetime values, and lifestyle, and the principles of the Hague Convention, ratified or not, will rule the day and return this poor woman to her husband and her home.”

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