J.A.C. Estate (Re), 2010 ABQB 270

Court of Queen ’ s Bench of Alberta Citation: J.A.C. Estate (Re), 2010 ABQB 270 Date: 20100422 Docket: DA01 009946 Registry: Calgary Court File Number DA01 009946 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial District Calgary Estate Name J.A.C. Applicant (Plaintiff) R.S and M.S. Respondent (Defendant) D.C. Restriction on Publication: No one may disclose information about the personal history or records of a dependent adult that was obtained by the Public Guardian or Public Trustee under the Dependent Adults Act .

See the Dependent Adults Act , s. 68 . _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J. Strekaf Delivered Orally on April 7, 2010 _______________________________________________________ [ 1 ] R.S. is applying pursuant to sections 23 and 49 of the Dependent Adults Act , R.S.A. 2000, c. D - 11 , as amended (" Act ") for review of an order dated October 27, 2008 which reappointed D.C. as guardian and trustee of J.A.C., and pursuant to sections 27 and 53 of the Act for an order discharging D. C. as J.A.C.’s guardian and trustee.

She is also applying to be appointed J.A.C.’s guardian, with the Office of the Public Guardian as alternate guardian, and J.A.C.’s trustee, either alone or with D.S. as co-trustee and with M.S. as alternate trustee.

[ 2 ] This application is being addressed pursuant to the provisions of the Act in accordance with the transitional provisions of the Adult Guardianship and Trusteeship Act , S.A. 2008, c. A-4.2,

section 117 . The application was filed July 31, 2009, and the Adult Guardianship and Trusteeship Act was proclaimed in force on October 30, 2009. The Transitional (Applications made in Conformity with the Dependent Adults Act; Certificates of Incapacity ) Regulation, Alta.

Reg. 218/2009 provides as follows: Applications under the former Act 3(1) An application under the former Act for the appointment of a guardian or trustee, the review of a guardianship or trusteeship order or the passing of the accounts of a trustee that was started before the coming into force of the Adult Guardianship and Trusteeship Act shall be continued and determined in conformity with the requirements, regulations, forms, practices and procedures that applied to applications under the former Act . [ 3 ] J.A.C. is a 63 year old woman who suffers from schizophrenia-paranoid type mental illness and a brain injury resulting from a motor vehicle accident in 1967.

R.S. and M.S. are J.A.C.’s sisters. D.C. is J.A.C.’s husband, having been married for the past 35 years. D.C. and J.A.C. had one child, J.C., who is 33 years of age and resides in Edmonton. D.S. is J.A.C.'s cousin. [ 4 ] R.S.'s application is opposed by D.C. and J.C. [ 5 ] J.A.C. has been under the care of a psychiatrist and had a history of various hospitalizations from 1997 - 2008. D.C. was appointed her guardian and trustee on April 23, 2004, which was reviewed and renewed on October 27, 2008.

J.A.C. resided with her husband D.C. in Carstairs until January 28, 2009, when she fled to a women's shelter with the assistance of staff at the Didsbury Mental Health Clinic where she had been treated for many years. After leaving the shelter, she was accepted into a program for seniors fleeing domestic violence at the Kerby Rotary House where she lived from February 18, 2009 until June 15, 2009 when she moved into a limited assisted living Boardwalk Retirement Community in Calgary.

She has not returned to live with her husband since January 2009, although she maintains regular contact with him. [ 6 ] On February 6, 2009, on the application by Alberta Health Services, Justice McIntyre granted an order for six months appointing the Office of the Public Guardian as the alternate guardian of J.A.C., with the authority to determine where she shall reside and to determine and consent to her day to day medical treatment, in consultation with D.C.

On November 23, 2009, Justice Bensler reinstated Justice McIntyre's order and directed that all parties cooperate in a neuropsychological assessment of J.A.C. to be conducted by Dr. Maclean and that J.A.C. could obtain her own assessment. [ 7 ] J.A.C. commenced a divorce action, on December 3, 2009 which D.C. has sought to have stayed. [ 8 ] J.A.C. has filed several affidavits in this proceeding.

She has stated that she left her home in Carstairs because D.C. had total control over her life, that she was afraid of him, that he would not let her visit her friends and family or let her smoke when she wanted and would not give her money. She said that she does not want D.C. to be her guardian as she is afraid he will send her back to Ponoka and that she is afraid that if he continues to be her trustee he will not be reliable in providing her with money.

She wants her sister R.S. to be her guardian and trustee. [ 9 ] J.A.C. filed a further affidavit in which she expressed her support of D.S. being appointed R.S.'s co-trustee and stated that they would likely be able to work cooperatively to ensure that the company owned by J.A.C. and her sisters, Ind-Con Holdings Ltd.,is run sufficiently and that her interests were met as both were family members and accountants who had her best interests at heart. [ 10 ] R.S.'s application is supported by the following individuals: 1. Dr.

John de Vries, a psychiatrist who has been treating J.A.C. for the past year, was of the opinion that J.A.C. understands generally the role of a guardian and the responsibilities and decision making powers that a guardian has, and that J.A.C. has the capacity to form a rational opinion with respect to her choice of guardian and supports J.A.C.'s choice of R.S. as her guardian.

2. Tina King, the Clinical Supervisor for Rural North Mental Health and Addictions with Alberta Health Services, who has administrative responsibilities for the Didsbury Mental Health Clinic where J.A.C. has been treated for many years, reported that J.A.C. had communicated that she had difficulty with the restrictions D.C. placed on her social and other activities, which increased since D.C.'s retirement, and that she and Clinic staff who care for J.A.C. are of the opinion that the restrictions placed by D.C. on J.A.C.'s activities are exacerbating her mental illness.

She outlined the circumstances that led to the DMHC assisting J.A.C. in moving to a shelter. She reported that she visited J.A.C. at the shelter, who reported that she was happy at the shelter, that "if I had to go back I'd slash my wrists", that she was concerned that D.C. would come and get her and that she had did not trust her sister M.S. to look out after her best interests. 3. Kim Frache, Register Psychologist, Addictions Program, Geriatric Mental Health Services at the Claresholm Centre for Mental Health and Addictions interviewed J.A.C.

She found there was no indication that J.A.C.'s mental status was significantly compromised at the time of assessment. She reported that J.A.C. was aware of her deficits and need for assistance, that J.A.C. felt her sister would be a better guardian and that J.A.C. was consistently able to give account of the difficulties she encountered with her husband. 4.

Brenda Hill, the Senior Manager of the Kerby Rotary House where J.A.C. resided for four months in 2009, observed that J.A.C. was fearful when D.C. was around, that J.A.C. reported that she wanted R.S. to be her guardian and that she was supportive of R.S.'s application. 5. M.S., who had been appointed J.A.C.'s alternate guardian and trustee in both the initial order granted in 2004 and the renewal granted in 2008, stated that she no longer sees D.C.'s guardianship of J.A.C. as in her best interest, that J.A.C. has improved since leaving Carstairs and that she supports R.S.'s application. 6. Dr.

Pachet, a Clinical Neuropsychologist, did an assessment of J.A.C. on December 16, 2009. In his report, he stated: Results from the evaluations completed revealed that J.A.C. is capable to choose her own Guardian and she understands and appreciates the implications and process related to making this change.

She was able to provide a clear and consistent rationale for her choice of a new Guardian and displayed sufficient understanding and appreciation regarding this choice.....J.A.C. consistently told me that she wanted to change her Guardian to her sister R.S. and she displayed a strong understanding and appreciation of the rationale for wanting to make this change. She reported that she wants a Guardian with certain qualities such as caring, respectful, considerate, and loving.

J.A.C. reported that the relationship she has with her husband has deteriorated beyond repair and in her opinion " he views me as only sick and dependent". She reported that her relationship with her husband is "oppressive", "abusive" and "overly controlling", while she characterized her relationship with R.S. as "very supportive, trusting, encouraging and respectful". .... It is also my opinion that J.A.C. is capable to give legal instruction related to her pending divorce proceedings.

She had good understanding and reasoning associated with her current legal affairs, specifically associated with her marital status. She was aware of the steps to access legal counsel and appreciated the consequences of the instruction she has provided related to her divorce proceedings....In

summary, it is my opinion that J.A.C. has capacity to choose her own Guardian and that she has capacity to give legal instructions, articulate her decisions to others, and appreciate the consequences of these instructions related to her divorce proceedings. While several cognitive impairments were identified, it is my opinion that these deficits are not global in nature and do not preclude her from being an active and capable participant when choosing her Guardian and when providing instruction to legal counsel. [ 11 ] Two reports were prepared by Dr.

Maclean in respect of the neuropsychological assessment of J.A.C. conducted by him. In the first report, he made the following statements: - J.A.C. stated that she would like her sister, R.S., to be her guardian because she believes her husband wants to put her back in Ponoka, which she cited as his ultimate reason for the current assessment. - She stated that her other sister, M.S., would act as trustee despite adding that she will have to keep records of her money because she does not completely trust M.S.

More specifically, she based her suspiciousness of her sister on "Perry Mason," stating that "every murder is about money". - There is an indication that her husband may have become enveloped in her paranoid delusions, resulting in a degree of animosity which likely undermines his ability to have her follow decision he makes on her behalf. If there is no validity to the marital discord aside from

that caused by J.A.C.’s suspiciousness, then her opinion regarding guardianship cannot be trusted, calling into question her capacity to participate in this decision. - I strongly recommend that (J.A.C.) continue to be under a guardianship and trusteeship order. Her husband has historically had this role. However, there is indication that her husband may have become enveloped in her paranoid delusions, resulting in a degree of animosity which undermines her adherence to decisions made on her behalf. At least some of her suspiciousness, such as her husband trying to poison her, is unlikely true.

Although she appears to have the basic intellectual capacity to participate in legal proceedings, it will be important to monitor the extent to which her paranoid ideation overshadow her clarity of the issues. Additionally, I understand she is seeking a divorce. In which case, the court may deem it inappropriate for her husband to remain as legal guardian and trustee. I have some concern regarding the extent to which she will become suspicious of her sister or anyone else in the role of guardian or trustee.

It will be important to revisit the issue of capacity to participate in legal proceedings related to guardianship is the issue is raised in the future based on paranoid ideation. [ 12 ] After review Dr. Pachet's report, Dr. Maclean provided a further report in which he stated that: - I am generally in agreement with Dr. Pachet's conclusions regarding J.A.C.’s capacity to participate in legal proceedings. My only area of concern, as mentioned above, is the extent to which her mental illness impacts her perception of the people involved in such decisions. [ 13 ] Pursuant to

section 8 of the Act , which provides that the Court may require a person proposed as guardian to attend and answer questions to determine whether the person meets the requirements of the Act , R.S. took the stand and answered a number of questions which I put to her. [ 14 ] J.A.C.'s assets, according to the financial statements filed in 2008 in connection with the review of her guardianship and trusteeship orders show that her assets as at April 23, 2008 were approximately $826,000, made up of $30,000 in short term investments, $7,000 in jewelry, Vision Exploration shares valued at $161,000, a half interest in the home at Carstairs valued at $122,000 and a one third interest in the voting shares of Ind-Com Holdings Ltd. valued at $506,000.

Ind-Com is a company that leases warehouse space in Edmonton, founded by J.A.C.'s father. She and her two sisters own the voting shares and her mother owns preferred shares. [ 15 ] R.S.'s application is opposed by D.C. and J.C. [ 16 ] D.C.'s position is that it would be in J.A.C.'s best interests for him to remain as her guardian and trustee. In his affidavit evidence, he provided a detailed history of J.A.C.'s mental illness, her various hospitalizations and the steps he took to care for her.

He denies being controlling or that he has any desire to see J.A.C. hospitalized again and points to the amount of time she was able to spend at home while he was caring for her. [ 17 ] He opposes R.S. becoming J.A.C.'s guardian on the grounds that she was pressuring J.A.C., that she would not be able to manage J.A.C.'s medications and that J.A.C. will likely become paranoid about R.S. if she became her guardian. [ 18 ] He opposes R.S. becoming J.A.C.'s sole trustee as he submits there is a conflict of interest because R.S. is a shareholder of and officer and director of Ind-Com Holdings.

While the three sisters are the common shareholders, R.S. and M.S. are involved in the management of the company and in that capacity have received management salaries and bonuses that were not available to J.A.C. He also argues that she has a history of disregarding court orders by providing money to J.A.C. directly (rather than to him despite court orders appointing him as J.A.C.'s trustee) and of withholding financial information from him as J.A.C.'s trustee.

He proposes a co- trusteeship between R.S. and himself, perhaps with a limited role for D.S. in relation to Ind-Com Holdings, or a totally independent trustee, or that he remain as J.A.C.'s trustee. [ 19 ] J.C. supports his father remaining as J.A.C.'s guardian but was of the view that there should be some independent oversight and that the Public Trustee and Public Guardian should be involved. He described his father as a loving, loyal and supportive husband, trying to do everything in his mother's best interests and as always encouraging her to take as much responsibility as she could for herself.

He states that he never observed his father being abusive to his mother. He states that his father and mother continue to enjoy a positive relationship since she left the matrimonial home, that they continue to talk and visit and that she does not seem afraid to call or meet his father. He filed an affidavit in which he attached a transcription of various telephone messages from R.S. and M.S. left on J.A.C.'s answering machine.

[ 20 ] Counsel for the Public Guardian was present at the application but took no position. [ 21 ] There are two issues to be determined on this application: 1. Should D.C. be discharged as J.A.C.'s guardian and/or trustee? 2. If so, who should be appointed as J.A.C.'s guardian, trustee, alternate guardian and alternate trustee? 1. Should D.C. be discharged as J.A.C.'s guardian and/or trustee? A. Guardianship [ 22 ] Sections 24 (1) and 27 of the Act address applications to review a guardianship order and to discharge a guardian. They state: Court order after review 24(1) When considering an application for review of a guardianship order, the Court (

a) shall consider whether the conditions referred to in section 7(1) and (2) are still applicable and whether the guardian has exercised the guardian’s power and authority in accordance with the guardianship order and

section 19, and (

b) may amend, cancel, terminate, continue, vary or replace the order subject to any conditions or requirements it considers necessary. RSA 1980 cD-32 s16; RSA 1980 c6 ( Supp ) s16; 1985 c21 s16 ; 1996 c13 s8 Discharge of guardian 27(1) The guardian or any interested person may apply to the Court for an order discharging the guardian from the guardian’s office.

(2) An application pursuant to subsection (1) shall be made by notice of motion in the judicial district in which the application for the order appointing the guardian was made.

(3) The person making an application under subsection (1) shall, at least 10 days before the date the application is to be heard, serve a copy of the application on the persons referred to in section 23(2) and section 23(8) applies.

(4) When the Court considers that a dependent adult is no longer in need of a guardian or if the Court is satisfied that a guardian

(

a) is unable or unwilling to continue to act as guardian, (

b) refuses to act or to continue to act as guardian, (

c) fails to act as guardian or fails to act in accordance with a guardianship order, (

d) acts in an improper manner or in a manner that has endangered or that may endanger the well-being of the dependent adult, (

e) is no longer a suitable person to act as guardian, or (

f) is no longer a resident of Alberta, the Court may make an order discharging the guardian from the guardian’s office or make any other order it considers appropriate in the circumstances.

(5) Before making an order under subsection (4), the Court shall satisfy itself that, if necessary, (

a) suitable arrangements have been or will be made in respect of the dependent adult, or (

b) an application for another guardianship order will be made.

(6) If the Court makes an order under subsection (4), the applicant shall serve a copy of the order on the persons who are required to be served with a copy of an application under

section 23 . RSA 1980 cD-32 s19; 1985 c21 s19 [ 23 ] On an application to review a guardianship order pursuant to section 24(1), the Court is directed to consider "whether the conditions referred to in section 7(1) and 7(2) are still applicable and whether the guardian has exercised the guardian's power and authority in accordance with the guardianship order and

section 19". There is no dispute by anyone that the conditions in

section 7 are still applicable and that J.A.C. should continue to have a guardian. [ 24 ]

Section 19 of the Act states: Exercise of authority 19(1) A guardian shall exercise the guardian’s power and authority (

a) in the best interests of the dependent adult, (

b) in such a way as to encourage the dependent adult to become capable of caring for himself or herself and of making reasonable judgments in respect of matters relating to his or her person, and

(

c) in the least restrictive manner possible.

(2) Notwithstanding subsection (1), where a guardian has been granted power and authority with respect to a matter that is contained in a personal directive, the guardian must exercise any power and authority in accordance with any clear and relevant instructions in the personal directive. RSA 1980 cD-32 s11; RSA 1980 c6 ( Supp ) s11;1996 cP-4.03 s35 [ 25 ] I accept that D.C. has acted in what he has believed to be J.A.C.'s best interests and, in his way, attempted to encourage her to be independent and acted in what he believes is the least restrictive manner possible.

However, I am also satisfied that J.A.C. has found him to be overly controlling, unnecessarily restrictive and that this view is supported by others, as outlined above. I note that J.A.C. seems to have thrived since she has left D.C.. [ 26 ] Section 27(4) outlines the factors to be considered on an application to discharge a guardian. In this case, the criteria set out in subsection 27 (a) - (

d) and (

f) are not applicable. With respect to subsection 27 (e), I am of the view that D.C. is not a suitable person at the present time to act as J.A.C.'s guardian. While I am satisfied that D.C. is very devoted to J.A.C. and that he has acted in what he has believed to be in her best interests, J.A.C. does not want him to be her guardian or trustee at the present time. Her opinion should be given significant weight. She has consistently expressed that opinion to her sisters and numerous professionals who largely support her ability to make choices in that regard.

While she suffers from schizophrenia, brain injury and paranoia, she has the capacity to participate in the choice of her guardian according to her treating psychiatrist, Dr. DeVries. He was of the view that J.A.C. has the capacity to form a rational opinion with respect her choice of guardian. [ 27 ] Dr. Pachet was also of the opinion that J.A.C. has capacity to choose her own Guardian. Dr. Maclean indicated that he generally supported Dr.

Pachet's conclusions regarding J.A.C.'s capacity to participate in legal proceedings. [ 28 ] In reaching this decision, I have considered the views of J.A.C.'s husband of 35 years and her only son who oppose this application. I have no doubt that D.C. and J.C. love J.A.C. very much and genuinely believe that it would be in J.A.C.'s best interest for D.C. to continue as her guardian.

However, their views should not take precedence over those of J.A.C. in view of the totality of the evidence in this case. [ 29 ] I also note that J.A.C. has expressed the desire to divorce D.C. and has commenced divorce proceedings which D.C. is challenging. I note that in Gabaj v. Gabaj, 1998, ABQB 33 , 217 A.R. 396, Veit J. stated at paragraph 2 in the context of an application by a husband of 18 years to set aside a temporary guardianship and trusteeship order granted to his stepson in respect of his wife and to become her permanent guardian and trustee: Given the evidence that it was Ms.

G's intention to separate from her husband before she was declared a dependent adult, it would be inappropriate for her husband to become her guardian and trustee. [ 30 ] While the circumstances in this case are different, J.A.C. wishes to proceed with a divorce. Dr. Pachet concluded she has a good understanding and reasoning associated with her current legal affairs, specifically associated with her marital status, and that she is capable to give legal instruction related to her pending divorce proceedings.

These circumstances provide a further reason why D.C. is not suitable to act as her guardian at this time. [ 31 ] In concluding that D.C. is not currently a suitable person to act as J.A.C.'s guardian, I wish to make it clear that I am in no way deciding that he might not be a suitable person to resume that role at some future time should circumstances change. B. Trusteeship [ 32 ]

Section 50 and 53 of the Act deal with applications to review a trusteeship order and to discharge a trustee. They provide:

Court order after review 50 On hearing an application for review of a trusteeship order, the Court may amend, cancel, terminate, continue, vary or replace the order subject to any conditions or requirements it considers necessary. RSA 1980 cD-32 s36 Discharge of trustee 53(1) The trustee or any interested person may apply to the Court for an order discharging the trustee from the trustee’s office.

(2) An application pursuant to subsection (1) shall be made by notice of motion in the judicial district in which the application for the order appointing the trustee was made.

(3) The person making an application under subsection (1) shall, at least 10 days before the date the application is to be heard, serve a copy of the application on the persons referred to in section 31(2) and section 31(8) applies.

(4) When the Court considers that the estate of a dependent adult is no longer in need of a trustee or if the Court is satisfied that a trustee (

a) is unable or unwilling to continue to act as trustee, (

b) refuses to act or to continue to act as trustee, (

c) fails to act as trustee or fails to act in accordance with a trusteeship order, (

d) acts in an improper manner or in a manner that has endangered or that may endanger the estate of the dependent adult, (

e) has been guilty of a breach of trust, (

f) is no longer a suitable person to act as trustee, or (

g) is no longer a resident of Alberta, the Court may make an order discharging the trustee from the trustee’s office or make any other order it considers appropriate in the circumstances.

(5) Before making an order under subsection (4), the Court shall satisfy itself that, if necessary, (

a) suitable arrangements have been or will be made in respect of the estate of the dependent adult, or (

b) an application for another trusteeship order will be made.

RSA 1980 cD-32 s39; 1985 c21 s33 [ 33 ] These sections are similar, but not identical to the provisions dealing with review of a guardianship order and discharge of a guardian discussed above. Again, there is no dispute by anyone that J.A.C. continues to require a trustee. [ 34 ] With respect to the application to discharge D.C. as J.A.C.'s trustee, the factors set out in paragraphs 53(4)(a) - (

e) and (

g) are not applicable. With respect to subsection 53(4)(e), I am of the view that D.C. is not a suitable person to act as J.A.C.'s trustee at the present time. While I am satisfied that D.C. has acted in what he has believed to be in her best interests as her trustee, J.A.C. does not want him to be her trustee at the present time. Her opinion should be given significant weight, for the reasons outlined above. [ 35 ] Again, I wish to make it clear that I am in no way deciding that he might not be a suitable person to resume that role at some future time should circumstances change. 2.

Who should be appointed as J.A.C.'s guardian, trustee, alternate guardian and alternate trustee? [ 36 ] R.S. is seeking to be appointed as J.A.C.'s guardian, which application is supported by J.A.C., M.S., Dr. DeVries and by Dr. Pachet.

Section 8 of the Act sets out the eligibility criteria to act as a guardian, which R.S. has met. She has filed a written consent to do so. Based upon all of the evidence in this case I am satisfied that she will act in J.A.C.'s best interests, that she will not be in a position where her interests and J.A.C.'s interests will conflict and that she is a suitable person to act as J.A.C.'s guardian. [ 37 ] R.S. should recognize, as was mentioned in Dr.

Maclean's report, that J.A.C. may become suspicious and transfer some of the paranoia which is currently directed at D.C. to R.S., or anyone else acting in the role of guardian or trustee. Guardianship of J.A.C. may prove to not be an easy task at various points in time. I encourage her to reach out and ensure that D.C. and J.C. continue to have an active role in J.A.C.'s life.

While different views are held by different individuals about what is in J.A.C.'s best interests, there is no doubt that it will be in J.A.C.'s long term best interests for her to be surrounded by many people who care about her and can provide her with support. [ 38 ] R.S. proposes that the Office of the Public Guardian act as J.A.C.'s alternate guardian. The written consent of the Office of the Public Guardian has been provided and I am satisfied that it is appropriate for the their office to be appointed J.A.C.'s alternate guardian pursuant to

section 25 of the Act . [ 39 ] R.S. proposes that she be appointed J.A.C.'s trustee, either with or without D.S. as co-trustee. I am satisfied that R.S. is an appropriate individual to act as J.A.C.'s trustee and that she is eligible to do so, having regard to the criteria is

section 36 of the Act . R.S. is J.A.C.'s sister and is a chartered accountant. I do not accept that she is necessarily in a conflict of interest with J.A.C. because they are both shareholders of Ind-Con or because R.S. is involved with the management of the company, anymore than D.C. was necessarily in a conflict of interest with J.A.C. because they were joint owners of their house or because he had been involved in the management of a company in which she held some shares.

I also do not consider R.S.'s delay in providing D.C. with answers to his questions about the family company or her provision of funds directly to J.A.C., rather than her trustee, to preclude her from acting as a trustee. While these actions may not have been the best exercise of judgment in the circumstances, I accept that she did so out of what she believed was in J.A.C.'s best interests at the time.

I am of the view that R.S. is prepared to assume the responsibilities of trustee. [ 40 ] It is proposed that D.S. act as J.A.C.'s co-trustee with R.S., to address any lingering concern that might exist with respect to the company. While I am not of the view that is necessary, I think it would be advisable and help defray any potential paranoia that might arise in J.A.C.'s mind with respect to the company.

I am satisfied that the Court has the jurisdiction under the Act to appoint co- trustees. [ 41 ] It was proposed that M.S. be appointed as J.A.C.'s alternate trustee, I have some difficulty with her suitability for this role at the present time, having regard to the concerns that J.A.C. has expressed to others about M.S., including to D.C., Dr. Maclean and Tina King.

In the affidavit sworn by J.A.C. on March 18, 2010, she expressed her support of the application to terminate D.C.'s guardianship and trusteeship and of R.S.'s application to be her guardian with the Office of the Public Guardian as alternate guardian and R.S.'s application to be her trustee, with D.S. as co-trustee; she made no mention of her position with respect to M.S. being appointed her

alternate trustee. [ 42 ] As I am prepared to appoint co-trustees, it is not necessary at this time to appoint an alternate trustee. [ 43 ] I wish to make it clear that I am in no way deciding that M.S. might not be a suitable person to resume that role at some future time should circumstances change. [ 44 ] In

summary, I am discharging D.C. as J.A.C.'s guardian and trustee, effective today, and appointing R.S. as J.A.C.'s guardian, the Office of the Public Guardian as J.A.C.'s alternate guardian and R.S. and D.S. as J.A.C.'s co-trustees. [ 45 ] The parties shall each bear their own costs, with the exception of the Applicants, whose costs may be paid out of J.A.C.’s estate. Heard on the 22 nd and 23 rd day of March, 2010. Dated at the City of Calgary, Alberta this 22 day of April, 2010. J. Strekaf J.C.Q.B.A. Appearances: Karen D. Jacobson Smith Mack Lamarsh for the Applicants Donna L. Gee MacPhail Harding for Deponent J.A.C. Randall Scott Alberta Justice for the Office of the Public Guardian