2007 BCSC 123 Re Grav

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Re Grav,*
	2007 BCSC 123

Date: 20070126
Docket: 06-1863
Registry: Victoria

In the Matter of The Patients Property Act,
R.S.B.C. 1996, C. 339, as amended and

Fritz Ernest Grav

Before: The Honourable Mr. Justice Metzger

Reasons for Judgment

(In Chambers)

Counsel for Eberhard Grav:	T. Luchies
Counsel for Esther Grav:	J. Campbell
Date and Place of Hearing:	20061220
	Victoria, B.C.

[1] The petitioner, Eberhard Grav (Eberhard), seeks a court order that declares his father Fritz Grav (Fritz) incapable of managing himself and his affairs and appoints Eberhard as committee of the person and the estate of Fritz.

[2] The respondent, Esther Grav (Esther), who is Eberhard’s sister and the daughter of Fritz, opposes the motion and seeks a court order returning Fritz to Ontario.

[3] The parties raise the existence of four Powers of Attorney:

1. an August 2004 Ontario Power of Attorney naming Esther and Eberhard as Attorneys;

2. a March 2005 British Columbia Power of Attorney naming Eberhard as Attorney;

3. a January 2006 Ontario Continuing Power of Attorney for Fritz’s personal care and his estate naming Esther as Attorney; and

4. a March 2006 British Columbia Power of Attorney naming Eberhard as Attorney.

[4] Esther submits that it is unnecessary to make a declaration of incapacity and appoint a committee because in January 2006, Fritz granted Esther a Continuing Power of Attorney for his personal care and for his estate.

[5] Eberhard submits that Fritz was incapable of granting the January 2006 and the March 2006 Powers of Attorney. Thus, his position is that only the March 2005 power is valid.

[6] The August 2004 Power of Attorney was never produced for the court, but both parties agree that it existed and that they were jointly named as Attorneys.

ISSUES

[7] The main issues before the court are as follows:

1. Does the January 2006 Power of Attorney make a declaration of incapacity and the appointment of committeeship unnecessary?

2. Is Fritz incapable of managing himself and his affairs?

3. If so, who should the court appoint as committee of Fritz’s person and estate?

1. Powers of Attorney

[8] There are four Powers of Attorney involving two jurisdictions. There is no evidence to suggest that the 2004 or 2005 Powers of Attorney were not valid. It is questionable whether the January and March 2006 Powers of Attorney were valid.

[9] The Ontario Substitute Decision Act, S.O. 1992, c. 30 (the “SDA”), governs the January 2006 Continuing Power of Attorney. Although I agree with Esther that pursuant to s. 47 of the SDA, Fritz only needed to understand whether Esther has a genuine care for his welfare and to appreciate that Fritz may need to have Esther make decisions for him in order to grant her Continuing Power of Attorney for Fritz’s personal care, I have doubts as to whether Fritz had the capacity in 2006 to revoke the 2005 Power of Attorney.

[10] Dr. Robertson provides the only medical evidence before the court on the issue of Fritz’s capacity to revoke a previous Power of Attorney. According to Dr. Robertson, as of August 11, 2005, Fritz no longer had the capability to revoke a Power of Attorney. Eberhard had Power of Attorney as of March 4, 2005. This was the last Power of Attorney Fritz granted before August 11, 2005.

[11] Dr. Robertson writes:

When I saw [Fritz] on August 11, 2005, he was unable to correctly identify the Powers of Attorney, showed inadequate insight into his cognitive losses and believed he was capable of managing his own finances. On my examination of August 11, I concluded that he was incapable o[f] revoking Power of Attorney.

[12] It is not clear whether Dr. Robertson concluded that Fritz was incapable of revoking Power of Attorney from that date forth or if at certain points in time, he was incapable. In my view, there is insufficient medical evidence to determine at precisely what point Fritz permanently lost his capacity to revoke an earlier Power of Attorney.

[13] I find that it is inconclusive as to whether the January 2006 or March 2006 Powers of Attorney are valid. As such, I do not agree with Esther that it is not necessary to make the declaration and appointment of committeeship that Eberhard seeks.

[14] Furthermore, I have concluded, as set out below, that Fritz is incapable of managing himself and his affairs and, therefore, meets the definition of a patient in s. 1(b) of the Patients Property Act, RSBC 1996, c. 349 [the “PPA”]. Pursuant to s. 19 of the PPA, once a person becomes a patient, every power of attorney given by the person is terminated.

2. Is Fritz incapable of managing himself and his affairs?

[15] In order to declare that a person is incapable, s. 3(1) of PPA requires that a court be satisfied on hearing an application and reading the affidavits of two medical practitioners, that a person is incapable of managing his affairs and himself. Subsection 3(1) states:

3(1) If, on

(a) hearing an application, and

(b) reading the affidavits of 2 medical practitioners setting out their opinion that the person who is the subject of the application is, because of

(i) mental infirmity arising from disease, age or otherwise, or

(ii) disorder or disability of mind arising from the use of drugs,

incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs,

the court is satisfied that the person is, because of

(d) disorder or disability of mind arising from the use of drugs,

incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs, it must, by order, declare the person

(e) incapable of managing his or her affairs,

(f) incapable of managing himself or herself, or

(g) incapable of managing himself or herself or his or her affairs.

[16] The only medical evidence is from two British Columbia doctors. Dr. Edmunds, a general practitioner, has been Fritz’s doctor since March 23, 2005. Dr. Edmunds conducted two mini-mental state exams (MMSE), on Fritz. On April 21, 2005, Fritz scored 21/30. On March 9, 2006 he scored 19/30. Dr. Edmunds did not explain the significance of the MMSE scores.

[17] In a medical opinion letter dated March 16, 2006, Dr. Edmunds states that based on her “examination and assessment”, Fritz suffers from progressive cognitive impairment and is incapable of managing his affairs. In an affidavit dated April 10, 2006, Dr. Edmunds states that Fritz is not capable of managing himself or his affairs. In neither case does Dr. Edmunds state when these incapacities occurred.

[18] Dr. Robertson is a specialist in internal and geriatric medicine. He saw Fritz on April 28, June 29, August 11, 2005 and on March 8, 2006.

[19] Dr. Robertson noted on April 28, 2005 that Fritz scored 18/30 on the MMSE and 65/100 on the 3MS. Dr. Robertson does not explain the significance of these tests and scores. I note that his 18/30 score is three points lower than what he scored on the same test given by Dr. Edmunds just seven days earlier. Dr. Robertson concluded, after interviewing Fritz as to his understanding of the nature, purpose and limitations of a Power of Attorney, that Fritz was capable of understanding the nature and risk of a Power of Attorney. Fritz had signed a Power of Attorney seven weeks earlier, on March 4, 2005 naming Eberhard as Attorney.

[20] On June 29, 2005, Dr. Robertson administered tests with the results of 21/30 on the MMSE and 71/100 on the 3MS. Again there is no explanation of these scores.

[21] On August 11, 2005, no tests were administered but Dr. Robertson concluded that Fritz was incapable of revoking a Power of Attorney as Fritz was unable to identify Powers of Attorney and showed inadequate insight into his cognitive losses with the result that he held the belief that he was still capable of managing his own finances.

[22] On March 8, 2006, Fritz scored 19/30 on the MMSE. Dr. Robertson concluded that Fritz was incapable of managing his affairs based on his examination and information provided to him. The doctor does not outline what information was provided to him or by whom.

[23] In his affidavit dated April 13, 2006, Dr. Robertson states that Fritz is incapable of managing his affairs and himself. I note that the affidavits of the two doctors are identical containing the same clerical errors. Dr. Robertson does not set out what weight he attaches to the test scores, his interviews and information provided to him. It is puzzling that he concludes on March 8, 2006 that Fritz is incapable with a 19/30 MMSE test score and capable with an 18/30 test score on April 28, 2005.

[24] The PPA does not require doctors to have any additional qualifications or experience other than being medical practitioners licensed to practice medicine in British Columbia and current members in the British Columbia College of Physicians and Surgeons [see Johnston v. Johnston, 2003 BCSC 110, at paras. 7-9].

[25] The PPA does not provide the court with any guidance as to what factors suggest a person is incapable of personal care. The Act leaves that decision to two medical practitioners that must, by affidavit, determine whether an individual is incapable of managing himself.

[26] Both doctors have met the Act’s requirements. In both of their affidavits and medical reports, the doctors have concluded Fritz is incapable of managing himself and his affairs.

[27] Neither Eberhard nor Esther contests the doctors’ opinions. I find that Fritz is currently incapable of managing his affairs and himself.

3. Who should the court appoint as committee of Fritz’s person and estate?

[28] Having found Fritz incapable of managing himself and his affairs, it is necessary to determine who should be Fritz’s committee. Subsection 6(1) of the PPA states:

6 (1) Subject to section 13, on application by the Attorney General or any other person, the court may appoint any person to be the committee of the patient.

[29] Section 13 is inapplicable in these proceedings.

[30] The court may appoint anyone Committee pursuant to s. 6(1) of the PPA. According to Finlay v. Finlay (1997), 16 ETR (2d) 216 (BCSC), at para. 13, and affirmed in Re Poon, 2005 BCSC 254, at para. 31, the PPA:

…sets out no criteria for selection of an appropriate committee by the court. The parens patriae jurisdiction of the court requires the court to exercise its power to appoint a committee only in the best interest of the patient.

[31] In determining what is in Fritz’s best interests, I will consider:

a. the circumstances of Fritz’s removal from Ontario;

b. Fritz’s intentions with regard to his future personal and financial care;

c. who is most able to act in Fritz’s best interests; and

d. what care is in Fritz’s best interests?

a. Fritz’s removal from Ontario

[32] I am satisfied that considering the circumstance of Fritz’s removal from Ontario will assist me in determining who should be the committee.

[33] Fritz immigrated to Canada in 1956 and lived in Ontario until February 2005. Fritz and his wife, Ingeborg (Inge), lived in their own homes in Ontario until November 2004. At that time, they moved into a retirement home in order to be closer to Kingston General Hospital because of Inge’s declining health. Inge died on February 9, 2005. Eberhard removed Fritz from the retirement home on February 25, 2005 and brought Fritz to Victoria.

[34] Eberhard states that his father was “delighted” to come to Victoria for a visit and did not resist as he was bored in the care home and did not like living with strangers. Eberhard submits that he did not remove Fritz from Ontario against his will. Esther claims otherwise.

[35] Eberhard’s view of the circumstances is supported by the affidavit of his live-in partner, Elizabeth Chapheau, who swears that Fritz has never showed any unwillingness to live in Victoria. I have accorded her affidavit less weight than that of Mr. Kaufmann and Ms. Gilmour, who are neutral in this matter.

[36] Ms. Gilmour, the owner and manager of the retirement home where Fritz resided from November 2004 to February 25, 2005, swears that two weeks prior to his removal, Fritz had told her that Eberhard wanted him to go out west and that he did not want to go. According to Ms. Gilmour, Fritz asked if Eberhard could make him go.

[37] On February 24, 2005, Eberhard phoned the retirement home several times to speak with his father and to ask for a copy of the Power of Attorney signed by Fritz in 2004. Eberhard did not inform Ms. Gilmour, or any of her staff, that he was in town or about his plans for the next day. When Eberhard came to collect Fritz on February 25, 2005, he initially told Ms. Gilmour that he was taking Fritz to Victoria for a vacation but later told her he was taking joint custody of Fritz with Esther.

[38] In the time that Eberhard was at the home with his father, Ms. Gilmour deposes she heard Fritz saying:

· “I don’t want to go; I like it here” (at least 7 times);

· “I have a feeling if I go, I won’t be coming back”; and

· “I think he is after my pension”.

[39] Ms. Gilmour deposes she saw:

· Eberhard throwing items into a duffle bag at random, but leaving many of Fritz's personal effects behind, and forgetting Fritz's medications until Ms. Gilmour reminded him;

· Eberhard physically forcing Fritz to put his coat on and pushing him towards the door;

· Fritz going from having tears in his eyes to crying, and being visibly anxious.

[40] Ms. Gilmour swears that when she tried to tell Fritz that the Power of Attorney did not give Eberhard the right to force him to leave, Eberhard interrupted her, and steered her into the living room away from Fritz. He then insisted that Ms. Gilmour not tell Fritz that he had a choice in the matter. Ms. Gilmour deposes that the whole removal episode did not take any longer than 20 minutes.

[41] Mr. Kaufmann, Fritz's lawyer, met with him in December 2005 after Fritz had returned to Ontario. Mr. Kaufmann deposes that Fritz told him that:

· he was happy to be back in Ontario with his daughter;

· he was not given a choice about going to Victoria;

· he felt Eberhard had little time for him; and

· he wanted to be back in Ontario.

[42] Esther deposes that Eberhard took Fritz from Ontario without her prior knowledge or agreement. She states that once back in Ontario in December 2005, Fritz told her he did not want to return to Victoria and that he disliked being left alone all day when Eberhard and Elizabeth Chapheau were at work. Both Eberhard and Elizabeth Chapheau are full time social workers.

[43] In an e-mail to Esther, Eberhard apologized to her for the manner in which he took Fritz to Victoria:

I know me bringing him out west the way I did was hard on everyone and again, I apologize for that. It was done purely out of concern for him and fear of going into a seniors home.

[44] On March 1, 2006, Eberhard returned to Ontario and again unilaterally moved Fritz to Victoria by picking him up at a bowling alley where he was on his weekly outing with his seniors group. Again, Eberhard did not tell Esther of his plans, nor get her consent to the removal.

[45] Eberhard deposes that Fritz did not resist. Eberhard swears it was in Fritz’s best interest to move him as he states that Fritz said he wanted to live in Victoria plus Eberhard did not want Esther to put Fritz in a retirement home.

[46] In his nephew’s birthday card, Eberhard wrote a note in which he discusses the March 2006 removal of his grandfather:

I do apologize for the incident with Opa, but I don’t think your mother was really going to return him and given all the years they had together, it is only fair that he spend his last few years with me. I hope you will understand this and forgive me when you[‘re ] ready.

[47] Irma Mertens, Fritz's sister-in-law and Eberhard and Esther’s aunt, deposes that Eberhard removed Fritz from Ontario twice without the knowledge or consent of Esther.

[48] Eberhard prevented Esther from any role in the decision about moving their father, which was directly contrary to Fritz's wishes as he had appointed them joint Attorneys in 2004. I am satisfied that Eberhard is motivated by his own interests and perception as to what is fair to him rather than the best interests of his father. I am satisfied that Eberhard moved Fritz against his will.

b. What were Fritz's intentions with regard to his future personal and financial care?

[49] Ms. Mertens deposes that prior to the death of his wife in 2005, Fritz stated that he and his wife had visited Victoria a few times and neither one of them wanted to live there. In addition, she states that in 2003 when discussing wills and Powers of Attorney, Fritz and his wife both made it clear to her that they believed Esther would look after them and their affairs.

[50] Esther deposes that:

· when her father’s health was better he always refused Eberhard’s requests to stay with him in British Columbia;

· her father never indicated to her at anytime that he wanted to live in Victoria; and

· her father indicated on his return to Ontario in December 2005 that he never wanted to go back to Victoria.

[51] Mr. Kaufmann deposes that Fritz told him in December 2005 that he wanted to stay in Ontario.

[52] Esther summarizes her position as follows:

In opposing the petitioner[’]s application I am carrying out my obligations to my father to see that his wishes, expressed to me when he was fully competent, are being carried out. When he was competent, our father made his wishes known and made legal arrangements in Ontario to deal with all these matters. I know that my father’s presence in British Columbia is not by virtue of any expression of true consent on his part, but merely the result of his amenability to suggestion as a result of his Alzheimer’s disease.

[53] Eberhard makes no mention of prior conversations with his father about his future care wishes. The evidence is that if Fritz has a desire to remain in Victoria, it is of recent origin and has occurred concurrently with his declining mental capacity.

[54] I am satisfied that when Fritz was still capable, he clearly stipulated that his wishes were to remain in Ontario and to have his daughter manage his affairs and personal care.

[55] I am satisfied that Eberhard has acted contrary to those wishes and that there is no evidence that Esther ever has.

c. Who is most able to act in Fritz’s best interests?

[56] The duty of the court is to determine who would be most able to act in Fritz's best interest.

[57] The evidence is that Esther has always acted in her father’s best interests. Her affidavit lists her ongoing commitment to the care of both her mother and father. She attended to their personal and financial needs and has done so for many years. Eberhard may well have done the same if he had lived in Ontario but the evidence is that his participation in his parents’ lives was minimal. Furthermore, he unilaterally and secretly moved his father to British Columbia on two occasions without consulting with his sister despite her continuing commitment to their father.

d. What care is in Fritz's best interests?

[58] Eberhard and Elizabeth Chapheau both depose that it is in Fritz's best interests to remain in their home. They swear that they have the time, space, ability and desire to care for Fritz. However, they both work fill-time and neither one deposes as to how they will mange as Fritz's condition deteriorates.

[59] Esther deposes that she works from home and would be able to monitor her father at her home, make renovations to her house or arrange for adequate supervision.

[60] Dr. Robertson opined that if Fritz were to move to or visit Ontario, “…he would likely suffer some disorientation any may experience a ‘catastrophic reaction’ with significant impairment in his function and mood when he relocates-even temporarily.”

[61] I am satisfied that the court does not have sufficient information to make a determination of whether it is in Fritz's best interests to remain in Victoria or return to Ontario. Where Fritz should reside and what level of care should be provided to him will be decided by the individual who is appointed committee of his person.

DECISION

[62] I find that Fritz is incapable of managing himself and his affairs.

[63] I find that Fritz intended to remain in Ontario and to have Esther involved in his future personal and financial care, and that moving Fritz to Victoria against his wishes was contrary to his best interests.

[64] Therefore, I appoint Esther as committee of Fritz's estate and person as I am satisfied that she has acted in her father’s best interests and is most likely to continue to do so. Thus, it is up to her decide where Fritz should reside and what level of care should be provided to him.

[65] Eberhard’s costs will be borne by him and Esther’s costs for this application will be taken from Fritz's funds held in trust by Esther. If the parties disagree with this costs order, they are at liberty to apply within 14 days of this judgment for a date before me to argue the issue of costs.

“R.W. Metzger, J.”
The Honourable Mr. Justice R.W. Metzger