H.B. Estate, 2012 ABQB 590

Court of Queen ’ s Bench of Alberta Citation: H.B. Estate, 2012 ABQB 590 Date: 20120928 Docket: DA03 15964 Registry: Edmonton Court File Number DA03 15964 Court Court of Queen ’ s Bench of Alberta (Surrogate Matter) Judicial District Edmonton Dependent Adult Name H.B. Applicants Office of the Public Trustee and Office of the Public Guardian Respondent H.B. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ A.

Introduction [ 1 ] The Office of the Public Guardian and the Office of the Public Trustee seek the appointment of a guardian and trustee for H.B. under the Adult Guardianship and Trusteeship Act , SA 2008, c A-4.2. H.B. opposes this application. B. Facts

[ 2 ] H.B. is 69 years old. He is an individual certified under the Mental Health Act, RSA 2000, c M-13, and at the time of this hearing lived at Villa Caritas, a geriatric mental health facility run by Alberta Health Services. In March 2011, Dr. Michael Buchinski prepared an initial capacity assessment report, finding that H.B. lacks capacity over all of his personal and financial matters and recommending that a guardian and trustee be appointed. The clinical team at Villa Caritas, including Ms.

Valerie Torgerson, a social worker specializing in geriatric psychiatry, was of the opinion that without outside formal support, H.B. could not successfully live in the community. As a result, Ms. Torgerson referred the matter to the Office of the Public Guardian and Trustee. The Public Guardian and Trustee prepared and served applications for guardianship and trusteeship on H.B. A review officer, under the Act , reviewed the applications and sought out H.B.’s input.

At this meeting, H.B. was clear that he did not want a guardian or a trustee, and signed a request for a hearing. [ 3 ] The request for hearing forms were both filed on January 6, 2012. In February 2012, Dr. Buchinski advised the Public Guardian that the March 2011 capacity assessment report remained current and H.B. still required a guardian and trustee. On this basis, the Public Guardian and Trustee filed a formal application and Notice of Hearing, with an initial hearing date for May 14, 2012. An updated capacity assessment report was completed by Dr.

Buchinski on June 1, 2012, mirroring the March 2011 report. [ 4 ] The Office of the Public Guardian was advised that H.B. was attempting to retain legal counsel for the hearing on May 14, 2012. H.B. was denied Legal Aid coverage. [ 5 ] The parties returned to court on June 4, 2012, before Horner J. who directed this matter proceed to an oral hearing to allow H.B. to call evidence and make argument as to whether or not an order should be granted. Horner J. directed that the hearing proceed on July 12, 2012. C.

Evidence [ 6 ] Three witnesses testified in support of the application for guardianship and trusteeship: Dr. Buchinski, a psychiatrist, Ms. Valerie Torgerson, and Ms. Deborah Ardessi, a public guardian representative with the Office of the Public Guardian. [ 7 ] Counsel for the Office of the Public Trustee applied to the Court to qualify Dr. Buchinski as an expert in geriatric psychiatry. In support of this application, Dr. Buchinski gave evidence regarding his educational qualifications and experience. He testified that he has been a psychiatrist for 14 years, with a specialization in geriatric psychiatry.

He also testified that he has experience completing capacity assessment reports under the Act and that he has given evidence in court on one previous occasion regarding a guardianship and trusteeship application. After hearing Dr. Buchinski’s evidence, I qualified him as an expert in geriatric psychiatry, thereby permitting him to give opinion evidence in the area of that expertise. [ 8 ] Dr.

Buchinski testified that H.B. is diagnosed with chronic schizophrenia, paranoid sub-type, meaning that H.B. suffers from a chronic mental illness and may suffer from delusions and hallucinations, as well as some thought disorder. H.B. has regularly been under the care of a psychiatrist, and has had a history of various hospitalizations at Alberta Hospital Edmonton (AHE) in 1980, 1983, 1988, 1991 and, most recently, from December 2009 - January 2011. He was transferred from the psychogeriatric program at AHE to the same program now housed at Villa Caritas in January 2011. Dr.

Buchinski stated that H.B. is currently stable on an injectable anti- psychotic medication, however is prone to periods of irritability and responds to unseen stimuli. He believes that H.B. is a risk to himself if he is not medicated, because he has expressed thoughts of suicide when he does not take his medication. [ 9 ] Dr. Buchinski expressed concern regarding H.B.’s capacity to manage his personal and financial affairs because his mental illness renders him incapable of making good decisions for himself. Moreover, Dr. Buchinski noted H.B. does not appreciate that he suffers from a mental illness, causing Dr.

Buchinski grave concerns regarding H.B.’s capacity to make decisions or give informed consent regarding his medical issues. Dr. Buchinski does not believe H.B. will regain capacity to make decisions in personal or financial matters. [ 10 ] Dr. Buchinski testified that if a guardian is not appointed, H.B. will have to remain at Villa Caritas to ensure his safety and the safety of others. Dr. Buchinski noted two recent incidents of physical aggression by H.B. while at Villa Caritas and an incident in which he was found lying on the ground with his legs on the road. Ms.

Torgerson also testified that H.B. would be vulnerable to exploitation by others if discharged without a guardian to establish ground rules regarding his living environment.

[ 11 ] Dr. Buchinski and Ms. Torgerson both observed that H.B. does not have the ability to meet his personal needs such as personal hygiene and taking medication. Further, Dr. Buchinski and Ms. Torgerson testified that H.B. has been released from Villa Caritas and placed into the community on two occasions. Both attempts were unsuccessful, despite appropriate support, because H.B. did not take his medication which led to a deterioration in his condition, including hygiene, agitation, hallucinations, and suicidal thoughts. [ 12 ] Dr. Buchinski, Ms. Torgerson, and Ms.

Ardessi all indicated that H.B. would benefit from assistance in all areas of his life, in particular, a designated assisted living environment. They all agreed that a supportive living environment would provide H.B. with more freedom and a higher quality of life than he currently has at Villa Caritas. [ 13 ] Ms.

Ardessi testified that the following personal decisions would need to be made for H.B. on a regular basis: where to live; health care decisions regarding treatment for mental health and his medications; supports he may need such as nursing staff; who H.B. would socialize with and what type of recreation activities he would participate in; and finally legal decisions of a non-financial nature. The Public Guardian did not seek control in other areas of potential guardianship because, as a senior, H.B. will not seek further education or employment in the future. [ 14 ] Ms.

Ardessi testified that H.B. does not have friends or family or anyone else willing or able to apply for guardianship. Furthermore, Ms. Ardessi testified that the Public Guardian has considered less intrusive measures, other than guardianship. In a conference with Ms. Torgerson and Dr. Buchinski, they considered appointing a “specific decision maker” through the Office of the Public Guardian to assume responsibility for a one-time placement or one-time treatment decision.

The treatment team decided that a specific decision maker was not appropriate because once the placement or treatment decision was made, H.B. would have the ability to subsequently make a contrary decision regarding his placement or treatment. The team concluded that H.B. actually requires the support of ongoing treatment decisions. They also discussed the option of a “community treatment order” but did not feel this was appropriate as H.B. would have to be compliant with the order and he has had trouble being compliant even in a hospital setting. [ 15 ] Dr. Buchinski and Ms.

Torgerson also testified that they believe it is necessary for the public trustee to be the surrogate decision maker for H.B. with respect to his finances. Ms. Torgerson testified that H.B. has not filed his income tax for the last two years and has continued to pay rent for his empty apartment the entire time he has been living at Villa Caritas. Ms. Torgerson also expressed concern that H.B. may be financially vulnerable to others who might be inclined to take advantage of him due to his limited abilities to take care of himself. [ 16 ] From the testimony of Ms. Torgerson and Ms.

Ardessi, it became clear that although H.B. wants to leave Villa Caritas, he has refused to consider moving anywhere other than his apartment. Their concern is that without a trustee to pay for the decisions the guardian makes, H.B. will refuse to pay. Ms. Torgerson believes that if he were put into an assisted living environment against his will, he would not pay the rent on his own. Furthermore, in both discharge attempts he has refused to pay for his medication or a telephone so that the necessary supports can maintain on-going contact with him. [ 17 ] H.B. gave evidence on his own behalf at this hearing.

He testified that he is from Tunisia and he came to Canada in 1967 by himself. He has no family here, was never married, has no children, and has no relatives in Canada. He testified that he does have a few friends in Edmonton from his prior employment as a journeyman boiler maker. He is currently retired. [ 18 ] H.B. testified that he does not believe he has any mental health issues. He very clearly stated that he wants to be discharged from the hospital. He has an apartment and he likes the landlord, tenants and the proximity to local amenities, including shopping locations and a drug store.

He believes his current rent is affordable. He indicated that he has a savings account and a monthly income from his pension. C. Issue [ 19 ] The sole issue for determination at this hearing is whether or not a guardian and trustee be appointed for H.B. under the Office of the Public Guardian and the Office of the Public Trustee? D. Legislation

[ 20 ] The Act sets out the procedural and evidentiary requirements that must be met before an order for guardianship and trusteeship will be granted: ss. 26 and 46. [ 21 ] The tests under the Act for guardianship and trusteeship are identical.

The Court may appoint a guardian or a trustee if the Court is satisfied that the adult does not have capacity to make decisions about personal or financial matters; less intrusive or restrictive alternatives than appointing a guardian or a trustee have been considered and would not be effective to meet the needs of the adult; and finally, it is in the adult’s best interests to make the order for guardianship or trusteeship. E. Analysis [ 22 ] I accept the testimony of Dr. Buchinski, Ms. Torgerson and Ms. Ardessi.

I also accept that no other person is willing, able, and suitable to be named guardian or trustee for H.B. [ 23 ] First, based on the two consistent capacity assessment reports by Dr. Buchinski and the oral evidence of Dr. Buchinski and Ms. Torgerson, I find that H.B. does not have the capacity to make decisions about the personal matters referred to in the guardianship plan. Those personal matters are: health care; where, with whom and under what conditions the adult is to live, either permanently or temporarily; with whom to associate; and legal proceedings that do not relate primarily to financial matters.

On the evidence before me, I am fully satisfied that H.B. has significant challenges dealing with personal matters, specifically making health care decisions for himself and taking care of his hygiene, choosing an appropriate place to live, and his social interactions. [ 24 ] The evidence before me also raises serious concerns about H.B.’s capacity to make decisions regarding his financial matters. H.B. does have a modest monthly income. I accept the evidence of Dr. Buchinski and Ms.

Torgerson that H.B. does not have the capacity to make decisions respecting his financial matters, as evidenced by his significant difficulty filing an income tax return and continuing to pay rent on an empty apartment. He has also refused to pay for his own medication when he was living on his own in the community. [ 25 ] Secondly, I am satisfied that the Offices of the Public Guardian and the Public Trustee have considered less intrusive and less restrictive measures than the appointment of a guardian and a trustee.

There were discharge plans made and implemented twice in an attempt to place H.B. back into the community and allow him to return to the apartment that he is fond of. However, both of these discharge attempts were unsuccessful in that H.B. discontinued his required medication on both occasions. [ 26 ] Finally, I find that the appointment of a guardian and a trustee is in H.B.’s best interests.

In coming to this conclusion, I have considered the capacity assessment report which clearly states that H.B. does not have capacity to make decisions about financial and personal matters. [ 27 ] I accept the argument by counsel for the Public Guardian that H.B.’s lack of capacity to make decisions about the personal matters referred to in the guardianship plan are likely to expose him to harm if a guardian is not appointed.

I also accept the argument that should the public guardian and public trustee not have authority regarding H.B.’s personal and financial matters, H.B. will likely remain a formal patient at Villa Caritas indefinitely. If discharged without a guardian or trustee, I have serious concerns regarding H.B.’s willingness to pay for an appropriate living environment or pay for medication. I accept the evidence that was presented during this hearing that it is imperative for H.B. to continue to take his medication.

Also, because H.B. is not willing to accept changes to the discharge plan, any changes that the guardian will make to his care plan must be paid for, and he is not willing to pay. [ 28 ] Most importantly, I find that the appointment of a guardian and a trustee is likely to produce benefits for H.B. that would outweigh any adverse consequences for him. In his testimony, H.B. stated that he would like to be discharged from Villa Caritas. He speaks generally of wanting freedom and autonomy. [ 29 ] Counsel for the Office of the Public Guardian, as well as Ms.

Ardessi, recognize and support H.B.’s desire to have as much freedom and autonomy as possible. Although a return to the community and his apartment is not in his best interests, the current placement at Villa Caritas is also not the best living arrangement for him. Furthermore, I find it is in the best interests of H.B. to have a

trustee appointed to ensure that his money is used for the purpose of paying for an appropriate supportive living environment. Finally, I find that H.B. may be vulnerable as a target or victim to others who may seek to take advantage of him on account of his regular income. F. Conclusion [ 30 ] I have carefully considered the testimony of H.B. during this hearing. He made it very clear to this Court that he feels he has no mental problem and that he does not need a guardian or a trustee. He feels strongly that he can take care of himself and wishes to return to his apartment.

I respect H.B.’s desire for personal autonomy and his desire to return to his apartment. However, I am satisfied that there should be an order with respect to guardianship and trusteeship. I have great concern that H.B. has been living at Villa Caritas for over two years. In my view, he should be living in a setting which offers a greater degree of freedom and more opportunities. However, I am also of the view that it is not appropriate for H.B. to return to his apartment, particularly given his failure to take his required medication when discharged into the community in the past.

I find that H.B. requires support in receiving and taking his medication, as well as paying for medication and a new living environment. [ 31 ] Under s. 33(1) of the Act , the Court shall only grant the guardian authority to act for those personal matters that the Court considers necessary. In the capacity assessment report, Dr. Buchinski offers the view that H.B. lacks capacity in all areas of his personal life. However, the public guardian has only sought authority in four distinct areas.

I grant the public guardian authority in the four requested areas in the guardianship plan: H.B.’s health care; where, with whom and under what conditions H.B. is to live, either permanently or temporarily; who H.B. is allowed to associate with; and any legal proceeding that do not relate primarily to financial matters of H.B. [ 32 ] I am satisfied that the guardianship application and plan satisfy s. 35(1) of the Act .

The plan was made in good faith, is in H.B.’s best interests, and is in the least intrusive and least restrictive manner that is likely to be effective. [ 33 ] Finally, I am satisfied that all of the people involved in this hearing have the best interests of H.B. at heart and want to assist him in transitioning into a new supportive living environment where he has more autonomy. [ 34 ] Before closing, I would note that H.B. was required to represent himself in this proceeding as a result of the denial of Legal Aid coverage.

Given the magnitude and impact of this decision on the life of H.B., I am concerned that Legal Aid apparently took the position that H.B. did not require legal representation at this hearing. These hearings involve important matters touching on the freedom and personal autonomy of citizens of Alberta. With such important interests at stake, these applications by the state to take away aspects of a citizens autonomy require close and careful scrutiny by the Court. In such circumstances, it would have been preferable if H.B. had received the benefit of independent legal representation.

I am, accordingly, directing that a copy of these Reasons be sent to Legal Aid for their review and consideration. [ 35 ] I greatly appreciated the professionalism and sensitivity of counsel in this matter. The important role that they played in this proceeding was a credit to the Bar and greatly ameliorated my concerns regarding H.B.’s lack of legal representation. Heard on the 12 th day of July, 2012. Dated at the City of Edmonton, Alberta this 28 th day of September, 2012.

M. David Gates J.C.Q.B.A. Appearances: Jayne Janzen Alberta Justice for the Alberta Office of the Public Guardian Sharon Buckley-Tkach Alberta Justice for the Alberta Office of the Public Trustee H.B. appeared on his own behalf