November 27, 2015

An article last month in the Wall Street Journal entitled “Abuse Plagues System of Legal Guardians for Adults” noted a variety of complaints across the United States about guardians of property and personal care. In one nightmarish story, 71-year old Linda McDowell’s former housemate and companion helped file a court petition, unbeknownst to Ms. McDowell, seeking to declare her incapable and to have the court appoint a guardian of property and personal care on her behalf. A temporary guardian was appointed by a Washington (state) court the day the petition was filed. Later, a professional guardianship firm – a burgeoning industry in the U.S., the article reports – was appointed. For the next two years, and nearly $470,000 of Ms. McDowell’s funds later, the firm stayed on as Ms. McDowell’s guardian as she fought to remove them. The guardianship only ended after a pro bono lawyer managed to convince a court to appoint an investigator, who found that a variety of doctors and medical professionals who had examined Ms. McDowell over the years had attested to her well-being and mental competence.

Ontario’s system is different than Washington’s. For one, under Ontario’s Substitute Decision Act, 1992 (SDA), section 69, an application to appoint a guardian of property must be served on the Office of the Public Guardian and Trustee (PGT). The PGT is mandated to protect alleged incapable persons in guardianship applications. There appears to be no similar requirement in Washington, where its Office of Public Guardianship serves a more limited role. Additionally, under section 62 of the SDA, in the event where there is serious risk of harm and a temporary guardian is required, a court can only appoint the PGT as guardian. Professional guardians of personal care appear to be rarely used, if at all, in Ontario, where the PGT is available as a guardian of last resort (as opposed to professional guardians of property, which can provide a valuable service).

Of course abuses in the guardianship system are not exclusive to other jurisdictions. In Chu v. Chang, a 98-year old grandmother’s three sons were removed as attorneys for property and replaced with a son and grandson as co-guardians of property and personal care. Afterward, the relationship between the co-guardians turned, in the words of the court, “poisonous”: one co-guardian effectively kidnapped his grandmother from her house and refused to disclose her location to his uncles and aunts, after alleging the other co-guardian had ordered her care worker to not feed her. The court removed both co-guardians, appointing a trust company as guardian of property and a daughter as guardian of personal care.

As the article notes, baby boomers in the U.S. will double the number of seniors by 2050. In Canada, the proportion will be even higher: seniors will make up 26.3 percent of Canada’s population by 2050, compared to 20.2 in the U.S., according to the OECD. Protecting seniors from potential abuse will only become more important as the years progress.