Many of us face the emotional and financial challenges of having a parent in need of some form of professional medical care or custodial care. The stigma of “putting Mom or Dad in a home” is fraught with emotional guilt, even when we know it is necessary in order to provide our parents with the level of care that we are unable to provide ourselves. Among the reasons why a care facility is an appropriate choice for many of us include parental disability, physical illness, or a decline in memory or other thinking skills severe enough to reduce the parent’s ability to perform everyday activities, such as Alzheimer's.
When we deliver our family members into professional care, we have reasonable expectations of trust and honesty of the health care workers, nursing staff, caregivers, or “care custodians.” This trust we place in care professionals extends to those working in in-home support services, Community Living, clinics, nursing homes, adult day care centers, independent living facilities, regional centers for individuals with developmental disabilities, and other similar agencies. Here is a typical and nefarious scenario:
When Joanne was 57 years old and living in Vancouver with her husband and three school-age children, her mother Ellen was 79 and living independently in the condominium she and her husband, Joanne’s father, bought in Kelowna when they retired. Joanne’s father passed away a few years prior at the age of 82, and Joanne visited her mother in Kelowna as often as she could, given the demands of her own growing family. Joanne noticed that Ellen seemed to be having some mild signs of cognitive decline – she became a bit confused about time and place, and exhibited occasional short-term memory issues, but Joanne chalked that up to just “old age.” All in all, Ellen seemed able to care for herself, she appeared to be well and happy, and she had lots of friends in the community looking out for her through her involvement with the local Senior’s Centre.
One morning, a few months after a visit with her mother, Joanne received a phone call from the Kelowna police to advise that her mother was found wandering alone on the outskirts of town. Ellen had told the police officers that she was looking for her dog, Rusty. Joanne realized that something was terribly wrong – Rusty was her mother’s childhood dog and was long gone. Joanne caught the next available flight from Vancouver to Kelowna where she took care of her mother and assessed her wellbeing. She gently questioned her mother, along with Ellen’s friends and neighbours, and it became apparent that her mother’s memory and sense of present time had deteriorated significantly. Joanne arranged to have her mother medically assessed. Ellen had Stage 5 Dementia. Despite Joanne’s best efforts to convince her, Ellen refused to move into Joanne’s house in Vancouver, preferring to remain in Kelowna with her friends.
Joanne hired a mobile nursing service to visit her mother weekly and commuted back-and-forth as best she could, but the day eventually came where Joanne and the nurses realized that Ellen required full-time care. Joanne and her family made the difficult decision to place Ellen in a care facility much closer to Vancouver, where Joanne could visit her more frequently. As they packed up Ellen’s condo, Joanne found her mother’s Will in a drawer and took it with her for safekeeping. They also packed Ellen’s most precious photos and memorabilia to adorn her new room at the care facility.
Once established in her new home, Ellen had a particular nurse at the care facility, Nancy, with whom she felt most at ease. Nancy had a soft voice and a way of calming Ellen down when she became agitated. Ellen often mistook Nancy for Joanne. As time passed, everyone seemed to have become blurred in Ellen’s mind. There were difficult days when Ellen didn’t recognize Joanne at all, and days when she seemed to think the current date was 30 years prior, or asked the same question over and over again. Then there were days when Ellen didn’t speak at all. However, in the fifteen months prior to her death, one thing she did manage to say to Joanne in a rare moment of clarity was, “Nancy is helping me settle my affairs.”
When Ellen passed away two years later, Joanne went to sort through her things. She found a second copy of her mother’s Will. It had been drafted within the last year of her life, and it left 35% of her assets to Nancy. The Will had been notarized at a local Notary’s office, which was an indication that she had been driven there explicitly. Joanne checked this new Will against the old one she had stored at home. Then she called a lawyer.
In BC, The Adult Guardianship Act establishes laws that govern a person’s financial, legal, personal and health care decisions if they become mentally incapable. The Adult Guardianship Act’s includes guiding principles, such as:
All adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they are capable of making decisions about those matters.
All adults should receive the most effective, but the least intrusive form of support, assistance or protection when they are unable to care for themselves or their financial affairs.
All adults are presumed to be capable of making decisions about their personal care, health care and financial affairs until the contrary is demonstrated.
An adult’s way of communicating with others is not grounds for deciding that they are incapable of making decisions.
The court should not be asked to appoint and should not appoint a guardian (known as a committee in BC) unless alternatives such as providing support and assistance have been tried or carefully considered.
If a committee has been appointed, the committee must foster the adult’s independence and involvement in decision making
We also rely on the Adult Guardianship Act’s definition of “abuse” as “the deliberate mistreatment of an adult that causes the adult (a) physical, mental or emotional harm, or (b) damage or loss in respect of the adult's financial affairs.”
The Act also provides that if an adult transfers an interest in the adult's property while the adult is incapable, the transfer is voidable against the adult unless
(a) the interest was transferred for full and valuable consideration, and that consideration was actually paid or secured to the adult, or
(b) at the time of the transfer, a reasonable person would not have known that the adult was incapable.
As such, caregivers have a code of conduct that we trust in to safeguard our loved ones. The majority of the time, ethics prevail, but there are cases where temptation to manipulate for financial gain overrides moral high ground.
Elders are susceptible to financial abuse when unduly influenced by another.
In caregiver financial abuse situations, elders who have mental or physical disabilities may be coerced into transferring their assets to their caregivers. In some cases, coercion occurs as a result of the caregiver withholding care or otherwise putting pressure on the older adult.
As the caregiver has authority and control over the elderly person, these relationships have the potential to become dangerous influences. As a result, any gifts to caregivers, financial transfers or actions to influence the estate plan of the elder are presumed to have been made under undue influence. In a court of law, the caregiver has the burden of proof - they must prove why the gift was not a result of undue influence.
Undue influence refers to any kind of physical or psychological exertion on the will-maker to manipulate his or her decision with respect to their Will. Sibling rivalries and second marriages are the most common instances of undue influence leading to Will disputes, however undue influence also occurs more frequently than you might think. It is a complex area, involving a number of intertwined factors.
Contesting a Will on the basis of undue influence requires a strong legal case and substantial evidence. In emotionally charged situations where you suspect undue influence, your first step should be to seek legal advice. Estate Litigation is a complex process and you’re going to need a lawyer by your side.
Helpforme is the Personal Legal Services division of Hammerberg Lawyers LLP in Vancouver, BC. Its Estate Litigation Team handles complex cases such as Undue Influence. If you’re not in a position to afford the fees associated with a legal dispute and possibly a trial, your only option is to work with a credible, contingency-based legal firm such as Helpforme. Contingency-based fee simply means that you won’t have to pay any legal fees until your case is positively resolved. Helpforme Estate Litigation lawyers enable you to move forward with confidence and peace of mind.