Commercial Litigation and Dispute Resolution Blog

A Vancouver realtor, Wilbur Roshinsky, was recently suspended by the Real Estate Council of B.C. for taking advantage of a 90 year old spinster suffering from dementia.  The realtor arranged to sell the spinster’s home to a developer for a price well below market rate.  CBC reports that the transaction was only caught and cancelled when the spinster’s lawyer learned of its peculiar circumstances.  The realtor was fined $100,000, suspended for 30 days and required to take a remedial course.

Whatever else this incident does, it serves as a cautionary tale and a good reason to herald the proclamation of The Adult Guardianship and Planning Statutes Amendment Act.  Set to come into force in September 2011, this legislation updates and expands the existing laws governing adult incapacity: The Adult Guardianship Act.  It is part of broader legislative changes dealing with adult abuse, neglect and health care consent.

Among other things, the amendments provide a more defined and responsive procedure for seeking guardianship of a person, both as a “personal guardian” and a “property guardian”.  The distinction in guardianship roles is that a personal guardian looks after personal and health care issues while a property guardian is responsible for financial affairs.  The new legislation also provides for mediation, if possible, over issues such as whether a guardian is needed, who the guardian should be and the appropriateness of the guardianship plan.  These amendments also set out in greater detail the duties and liabilities of a guardian.  In short, the amendments seek to put in place greater transparency and accountability for those who act as guardians and for those who may require such assistance in future. 

The new legislation also sets out in greater detail the ability of people to plan in advance for important lifestyle, health care and legal decisions that may need to be made if they become incompetent.  The intent is to have a person’s recorded wishes heeded as one of the central considerations when making decisions about that person when they are longer able to articulate them. 

This is all a good thing and will help to reduce, but will not eliminate, elder abuse and instances of inadequate care.  Katherine Ashenburg, in her article “The Long Goodbye” found in the March 2011 edition of The Walrus, eloquently describes the personal consequences and the societal effects of Canada’s aging population.  Within 30 years, ¼ of all Canadians, 9.2 million people, will be senior citizens.  This means more people will need to rely on legislation like The Adult Guardianship Act in caring for aging family members. 

As the Roshinsky case illustrates, we must all be alert to cases of possible abuse or want of care.  In such instances, it is, at a minimum, important to notify someone of such cases.  A good place to start is the Public Guardian & Trustee’s office. 

Hopefully, this new legislation will also help to avoid costly and bitter litigation involving the capacity and competence of individuals, particularly the elderly.  A recent B.C. Supreme Court case, Modonese v. Delca Estate, which took eight days of trial time over two years, illustrates how badly things can go wrong.  In this case, the Court found one of two siblings had exercised undue influence and dominance over a frail parent in the transfer a parcel of land.  After the parent’s death, the other sibling successfully sued to have the land returned to the parent’s estate.  It was the only significant asset.  The Court relied on the presumption of undue influence to reach this result.  That rule of evidence is one of the legal tools created by the courts to assist in protecting vulnerable individuals.  Had a guardian been appointed under this new legislation, the original transfer would have faced scrutiny prior to the parent’s death, possibly avoiding the subsequent lawsuit.