Martin v Hunter, 2021 ABQB 153

Court of Queen’s Bench of Alberta Citation: Martin v Hunter, 2021 ABQB 153 Date: 20210225 Docket: 1901 08593 Registry: Calgary Between: Sheila Christine Martin Plaintiff/ Applicant - and - Karla Mae Hunter Defendant/ Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice N.E. Devlin _______________________________________________________ I. Overview [ 1 ] Marion Hunter is now 99 years old.

On March 22, 2019, she executed a new Immediate Enduring Power of Attorney, Personal Directive, and Will (the “2019 POA”, “2019 PD” and “2019 Will”, respectively and the “2019 Documents” collectively). She did so in her room on the locked memory-care ward of the AgeCare Midnapore facility (“AgeCare”), where she has lived since 2016. Months before Marion signed these documents, her doctor and another physician signed Declarations of Incapacity, attesting that Marion lacked the capacity to make personal decisions, including financial decisions. This activated her previous 2017 personal directive.

In this application, the Court is called upon to determine whether the 2019 POA is valid. [ 2 ] The real dispute animating this action is not over who will bear the thankless task of managing Marion’s modest funds through the final part of her life. Rather, it is driven chiefly by personal animus between Marion’s two former daughters-in-law and concerns over the preservation and distribution of Marion’s estate. That notwithstanding, the Court was not asked to determine Marion’s testamentary capacity to make the 2019 Will.

While these Reasons may foreshadow the outcome of that issue, it unfortunately appears that Marion’s estate may yet be the subject of further litigation. II. Background [ 3 ] Marion was born in New Brunswick in 1921 and lived there most of her life. She and her husband, Walter, had one child, a son named Ron. Ron met his first wife, the applicant Sheila Christine Martin (“Chris”), in the early 1970s. Ron and Chris had two children, Marion’s grandsons, Matthew and Geoffrey. Ron and Chris separated in 1992 and were divorced in 1997.

According to Marion, the separation was acrimonious and driven in part by Ron’s inability to provide for Chris financially in the manner she desired. [ 4 ] Walter died in 1997. Marion remained in New Brunswick until 1999, when she moved to Calgary to be closer to her family. She purchased a condominium and lived self-sufficiently.

[ 5 ] After his divorce from Chris in 1997, Ron commenced a long-term relationship with the respondent, Karla Mae Hunter (“Karla”). The couple lived predominantly in Calgary and assisted Marion in some of her activities. This assistance increased as the years passed. Chris deposes that she too maintained a friendship with Marion over the years, as they lived near one another. [ 6 ] Ron and Karla became engaged in 2013 and married in 2014. In 2015, Marion sold her condo and moved into a seniors’ residence.

Because she was in a much smaller space, she asked Ron and Karla to store many of her items, which Karla continues to have in her custody. [ 7 ] In September 2016, Ron and Karla visited Marion and found her in medical and mental distress. She was delusional and was taken to hospital where she was diagnosed with a serious urinary tract infection (“UTI”). Medical staff advised that Marion would require a higher level of care going forward. In October 2016, after six weeks in the hospital, Marion moved into AgeCare where Ron and Karla had found a larger and more pleasant room for her.

After Marion’s move to AgeCare, Ron began looking after her affairs. [ 8 ] In 2017, Ron was diagnosed with cancer; he passed away on May 20, 2017. As Ron’s diagnosis was terminal, the family engaged in further estate planning. Two days before Ron’s death, Marion updated her will, personal direction and enduring power of attorney. The latter document still listed Ron as her attorney, but named Karla as the alternate. In this will (“the 2017 Will”), Marion split her estate equally among her two grandsons and Karla.

After Ron’s death, Karla continued to assist Marion with financial matters; Marion made her accounts joint with Karla to facilitate this. A. Marion’s decline [ 9 ] Marion suffers from dementia and has a history of delirium. These diagnoses were made as early as 2016, proximate in time to her hospitalization. Since her move to AgeCare, Marion’s primary care physician has been Dr. Andrea Cullingham, who has seen Marion almost weekly over the past five years. Her evidence was that Ron’s death correlated with a significant decline in Marion’s mental health, including her mood, behaviour and cognition. [ 10 ] Dr.

Cullingham’s notes record Marion having possible hallucinations in late October 2017, coupled with ongoing confusion. A Geriatric Mental Health Assessment was conducted by a Consulting Psychiatrist and a mental health social worker on November 16, 2017 (the “2017 Assessment”) as a result of Marion’s “change in mental status, increased wandering, confusion, disorientation”. [ 11 ] The 2017 Assessment notes that, between November 5 and November 18, Marion “showed 24 periods of agitation and 91 periods of wandering/confusion”. Her UTI was recurrent and caused significant cognitive difficulties.

She was recorded as having been confused and wandering at night, asking staff about her money. On one occasion, she asked for breakfast at 4 am and wandered the hallway yelling “I need to meet the Queen”. [ 12 ] When interviewed for the 2017 Assessment, Marion she stated she was “terribly tired” as she had “worked hard last night on a case for important government officials”, though she could give no more details. She also noted that she felt like she had been a burden to Karla.

The assessors attempted to apply the MoCA, a commonly used cognitive capacity tool, but Marion became irritated, refused to participate further and stated “this doesn’t interest me anymore”. [ 13 ] The 2017 Assessment diagnosed Marion with a “Major Neurocognitive Disorder (likely vascular dementia and Alzheimer’s)” and established her cognitive baseline as quite low. [ 14 ] Several witnesses explained to the Court that charting for patients like Marion is done “by exception”, meaning that observations consistent with the patient’s baseline state are not repeated in the charting.

Rather, only those developments or events that are exceptional or otherwise depart from the norm are recorded. Therefore, once constant elements of a major neurocognitive disorder are established, the absence of further mention of these does not reflect an improvement. To the contrary, improvement would be specifically noted as exceptional. [ 15 ] By December 2017, Marion began expressing concern that Karla was stealing her money. Staff at AgeCare conducted a cursory examination and concluded this was a manifestation of Marion’s delirium.

Charting by AgeCare’s social workers records that, when asked why she harboured these suspicions, Marion could not provide any answer. Her statements about Karla and money were also once accompanied by statements that the staff had put all of her clothes out on the street in a barrel. Contemporaneous records describe Marion as “very confused”.

No financial examination was conducted, as the Agecare staff were familiar with Karla and satisfied that she had Marion’s best interests at heart, based on their observations of the care-relationship. [ 16 ] Marion’s condition appears to have been relatively stable through much of 2018, but began to decline again towards the end of the summer. On August 28, 2018, nurses recorded that Marion was up and fully dressed at 11:50 PM and told them “she was going to leave this place”. When asked why, she answered “because of all the drunk partiers in my room”.

Nurses offered Marion some juice and a snack and escorted her back to her room where she settled once assured that she was safe and that, contrary to her suspicions, there was no alcohol in the orange juice. [ 17 ] By early September 2018, Dr. Cullingham noted that Marion was delirious and had appeared more confused over the previous few weeks. Around the same time, nurses recorded an encounter with Marion in which she again expressed distress regarding finances.

The entry states that Marion was found crying in a chair in her room at 9:00 pm and said that she was waiting for Karla to return her bank cards to her, because she had received a call from her bank informing her that all the money from her savings account had been withdrawn. Marion seemed aware that Karla had her bank cards to “do errands for me”, but told the nurse that Karla had “drained me dry” and that she didn’t expect Karla to come in because “she must know by now that she has been made”. [ 18 ] AgeCare’s social workers followed up the next day regarding Marion’s concerns.

Records from September 5, 2018 disclose the following: Resident was very upset and concerned that she received a call from the bank manager the daughter-in-law taken her money that she

needed to get a taxi to go to the bank... Spoke with resident who was very confused about who she spoke with and what was said. Change topics frequently and was inconsistent in her reporting. Managed to calm resident down and settle her in her room with music on. [ 19 ] Based on these events, Dr. Cullingham resumed treatment for a suspected UTI and, by September 12, 2018, observed that Marion was looking forward to a trip out of the facility and was “back to baseline.” [ 20 ] On October 6, 2018, Marion was again recorded as being confused, talking about a plane crash and looking for the pilot.

On October 29, 2018, AgeCare social workers recorded that Marion was concerned about “money from her mother’s sale of the house and wanted to transfer to her account”. Marion’s mother had obviously been deceased for a great many years. [ 21 ] An annual patient care conference was held October 31, 2018. Karla and Matthew were present, together with Marion’s care- team. Dr.

Cullingham’s notes from that day indicate that: “family noted decline in cognitive status and progression of dementia, overall there are no concerns about medications or care.” In this meeting, it was concluded that Marion’s 2017 personal directive should be activated. To this end, Dr. Cullingham completed a Declaration of Incapacity for Enduring POA. A second physician, Dr. Majeed, completed a similar document on November 5, 2018. In her declaration, Dr.

Cullingham wrote: PT not able to understand consequences of decisions, PT not oriented to place/person/time has progressive dementia with delusions and paranoia. Dementia impairs her judgement and executive function. [ 22 ] Medical records from early February 2019 indicate that Marion was suffering “increasing confusion, increasingly difficult behaviour, wandering” and consistent refusal of her medications. Marion was confused, angry and verbally abusive. On February 9, 2019, a nurse recorded that when she entered Marion’s room at 7:30 am, Marion thought the building was on fire.

At lunchtime, Marion was weepy and told a healthcare assistant that somebody had died. Karla phoned later in the day, advising that Marion had phoned her to say that a dog died and she felt so sad about it, making Karla concerned that Marion once again had a UTI. [ 23 ] Testing and treatment for a UTI was undertaken, but Marion’s behaviour worsened. On February 10, 2019, Marion woke at 1 am screaming “why nobody is here I’m going to call the police.” When nurses spoke to her, she said “I have to do something.

Look the Service Canada is open”. [sic] [ 24 ] The following day, Marion came to the nursing station in the middle of the night confused and reporting that she had heard her family screaming. By February 14, 2019, nurses reported that Marion was continuing to have hallucinations despite completing her course of medication for the UTI. Marion had also begun wandering extensively, including outside the facility without appropriate winter clothing. By February 19, AgeCare determined it would be in her interests to move to the secure memory care ward and Marion was relocated there on February 20.

Shortly thereafter, nurses recorded that Marion believed she was in London. [ 25 ] As summarized by Dr. Cullingham, Marion had suffered a continual progressive decline with occasional stepwise changes (i.e., larger moments of decline) since 2017. B. Chris and Matthew escalate concerns about money [ 26 ] At some point in late 2018, Marion began expressing her money concerns to Matthew, who in turn related them to his mother, Chris, together with what she described as a request from Marion for her to come visit.

Chris testified that she had been an infrequent visitor to AgeCare in 2018, as her life had grown increasingly busy. She had not seen Marion in September or October 2018, during one of Marion’s steeper periods of decline. [ 27 ] When Chris went to visit, Marion told her she was upset with Karla for withholding her bank, debit and credit card statements and for refusing to provide her estate planning documents, despite repeated requests.

Chris deposed that Marion asked for Matthew to start looking after her banking and that, in January 2019, Marion again asked her and Matthew for help obtaining her financial and estate planning documents. [ 28 ] Chris says she told Marion to phone Karla and ask her to bring the documents and that she was present when Marion did so. Her evidence is that Karla failed to bring Marion her documents, which resulted in Marion becoming increasingly upset and agitated and feeling suspicious that she was being “blocked”.

It did not help that Karla refused to provide documents to Chris or Matthew. [ 29 ] Chris stated that, on March 21, 2019, she and Matthew took Marion to the bank, where Marion was surprised to discover that Karla had ‘added herself’ to all of Marion’s unregistered accounts. Chris describes Marion as shocked that Karla was making transactions on her accounts without her consent or providing any accounting thereof. C. Chris arranges a lawyer to see Marion [ 30 ] On March 19, 2019, Chris spoke with the lawyer who would draft the documents presently at issue (the “Lawyer”).

She told him that Karla would not provide documents to Marion and that Marion wanted Matthew as her representative. Importantly, she described Marion as a competent individual who “knows what’s what” and “motors with her walker”. [ 31 ] It is clear from the Lawyer’s notes that Chris framed the situation as financial elder abuse. The “problem” was that Karla had a bank card and likely was accessing Marion’s money improperly. Immediately after the reference to the “problem” in the Lawyer’s notes, he wrote that AgeCare had told Chris that they would provide details only “to the Agent – Karla”.

There appears to have been no discussion as to why Marion had an agent. Chris gave the Lawyer Marion’s phone number and he said he would call her. [ 32 ] Chris did warn the Lawyer that Marion might call him “Burton” – her late brother’s name. She made no mention of the fact that Marion was on a secure memory-care floor, nor that her 2017 personal directive had been activated. Chris claimed she was unaware of this until the litigation commenced, though the evidence was clear that Matthew would have known it from the annual patient care

conference on October 31, 2018. No explanation was provided for this apparent knowledge gap between Matthew and Chris. D. The Lawyer’s interaction with Marion [ 33 ] The Lawyer called Marion. As with all his interactions relevant to this matter, the Lawyer took commendably thorough notes, often verbatim. These are of great assistance to the Court and this practice is recommended for all capacity-related retainers. [ 34 ] Notably, the phone call began with Marion telling the Lawyer that her late father had a garage on the corner of Metcalf and Adelaide in the “north end”.

I infer from the other facts in this case that this is a reference to the north end of Saint John, New Brunswick at some time in the 1920s or 1930s. Marion asked to meet with the Lawyer after breakfast, then reverted to telling him about her upbringing in Saint John and her move to Calgary. [ 35 ] The Lawyer met with Marion on March 21, 2019. He took 31 pages of handwritten notes regarding this meeting.

This is the closest and most detailed contemporaneous evidence of Marion’s state-of-being on the days surrounding execution of the new estate documents and must be reviewed in considerable detail. [ 36 ] When the Lawyer arrived, Marion appeared to know who he was and invited him in. She pointed out photos of her grandchildren and shared facts about their lives. She proceeded to provide some family history, referring to her son Ron as “Burton”, but remembering that he had died of cancer. Marion provided a great deal of family history, with a particular focus on her time in New Brunswick.

Marion was aware that she would be turning 98 years of age on April 27. She knew that it was March 21 st and remembered that Chris had written the Lawyer’s name on the calendar for that day. [ 37 ] The conversation then turned to financial issues. Marion told the Lawyer she was unhappy. She related that her money previously had been in the Bank of Nova Scotia in Saint John and had been moved to a branch in Calgary across from where she had lived. Apparently referring to the transfer funds, she said “I’ve often wondered how this happened...

Burton was married to a woman who sold women’s clothes at a shop on 166 Street in Calgary”. This was a reference to Karla, whose name Marion appears not to have remembered at that point. [ 38 ] Marion continued to refer to her son Ron as “Burton” throughout the conversation and, according to the Lawyer’s evidence, also called him Burton at some stage in their meeting, as Chris warned him she might. [ 39 ] Marion then told the Lawyer that she didn’t know where “Burton” and Karla had been married.

Shortly thereafter, she recalled that the wedding had been at Karla’s house and that she had been there and had made scalloped potatoes for the reception. [ 40 ] The Lawyer then steered the conversation towards the food at AgeCare. This prompted Marion to enthuse that she had received cornflakes with brown sugar and fried eggs for breakfast that morning. She was delighted and told the Lawyer: “I love that, they taste so good. I’ve asked for it repeatedly and I’ve never got it.

Today, for some reason, I got it!” Marion told the Lawyer she had been asking for this breakfast for two years and never received it, until that day when, for some reason, the staff told her that they could do it for her from now on. Unbeknownst to the Lawyer, Marion had asked for, often vociferously, and received this favourite breakfast virtually every day since moving to AgeCare. [ 41 ] The Lawyer turned the conversation back towards finances and asked Marion why she was upset. Marion responded that after “Burton” died, Karla asked if Marion would like her to help.

Marion said she did want Karla’s help, but did not want Karla to take over. Somewhere in this portion of the conversation, Marion related that a bank manager had told her that Karla seemed trustworthy. [ 42 ] Marion then talked about having owned a 4-door “Essex” automobile, which she said she had driven while in her previous senior’s residence. While Marion may have gotten the model name wrong, vintage cars enthusiasts may recall that Essex vehicles were manufactured in the early decades of the 20 th Century. [ 43 ] Marion then related that she had fallen and had to move as a result.

She had liked her previous place because she made friends with the chef who cooked her a special breakfast everyday, leading some to complain she got special treatment. Marion then said she was happy at AgeCare but wished the food would get better, saying with a smile that “this morning was a good sign”. [ 44 ] The conversation then returned to the bank manager. Marion stated that Karla took her to the bank but she could not remember the manager’s name.

The Lawyer then appears to have asked about Marion’s assets, to which she could reply only that “I brought a considerable amount of wealth from Saint John”, though she was not sure how much. Marion then spoke again about the sale of her late mother’s home. [ 45 ] When asked what she owned, Marion replied that it was her money in the Bank of Nova Scotia in a branch “close to where my high-rise was”. She then said that Karla lives in that area. This is notable because it was Chris who testified that her home was only a few blocks from Marion’s.

Whoever she was speaking about, Marion then went on to say, “she’s a very nosy person she wants to know everything about me, but doesn’t tell me much about her”. [ 46 ] The Lawyer then asked Marion if she was worried that Karla could take her money. Marion replied “Oh she’d grab everything”. Marion did not know how much was in the account but was afraid that Karla’s name could be on it and she might have access. [ 47 ] Marion then spoke about “Burton” and his relationship to Chris. She told the Lawyer that their marriage did not work because “Chris wanted more than Burton could provide...

It wasn’t going to work”. She told the Lawyer that Chris “wasn’t good to Burton; it was a terrible divorce”, but that she now has a very good relationship with Chris, thanks to Chris’ initiative to repair the relationship. [ 48 ] The Lawyer returned to the issue of banking authority and Marion told him she was worried that Karla was trying to have complete control, that she was on the account and had a bank card.

[ 49 ] The Lawyer then asked Marion who she wanted her money to go to after her death. Marion answered that she wanted her grandchildren, Matthew and Geoffrey, to get the money. She added, “I know that Karla wants it, to pay off her mortgage.”, but reiterated that she wanted her money to go to her grandchildren. [ 50 ] Marion then recounted that Karla had told her she wanted a bank card because she would need to buy some things for Marion. However, Marion related that the bank manager had since told her a number of things about Karla, including that “Karla is using the account for her own use and benefit”.

Marion could not tell the Lawyer why she had not cut off Karla’s access to the account. [ 51 ] The Lawyer then inquired whether Marion had confronted Karla about this and what her response had been. He recorded that Marion “doesn’t really answer it, other than to acknowledge what she does and says it’s not right”. Marion then noted that Karla came by and spent time with her, often taking Marion out for dinner and doing her nails. [ 52 ] The Lawyer asked again about Marion’s estate and she was definitive that she wanted her grandsons to receive it, saying “Karla is not my relative.

She was married to my son – I want my boys – my grandsons – to have what money I have when I go”. Marion added that her late husband had wanted their money to stay within the Hunter family. Marion added that Karla tried to encourage her to leave everything to her and openly tried to encourage Marion not to leave everything to her grandsons, denigrating their commitment to her.

The topic of succession was repeatedly addressed and the Lawyer records that Marion was “adamant” she wanted her money to go to her grandsons. [ 53 ] The Lawyer then asked where Marion’s existing will, power of attorney and personal directive were. She responded that Burton kept them while he was living, but that Karla now had them. Marion told the Lawyer that she thought Matthew and Geoffrey should have the will and that she wanted the boys to look after all of this. Marion then told the Lawyer that Karla had belittled her grandsons and had not provided her with any of the documents.

Marion told the Lawyer that Karla previously had said “I think you need a new will, because things change.” She recounted that Karla had taken her to see a lawyer who told Karla to stay outside of their meeting and said to Marion that “that woman wants to tell you what to put in your will – and I don’t want her in here”. Marion said she advised this other lawyer that “I don’t want her in here either and I don’t want her in my will, I want everything to go to my grandsons”.

Marion said that this lawyer was great and told her that Karla would not be in the will and that he was “worried about Karla”. [ 54 ] Marion continued that Karla took her from this lawyer’s office to the bank to leave a copy of the will there.

She described having told the bank manager “I don’t want Karla in my will – just my boys”, to which the bank manager responded that this was “wise” and supposedly told Marion the following: – Karla is not her family; – Karla is a “spendthrift”; and – Karla had already spent Marion’s money. [ 55 ] Marion then told the Lawyer that Karla was opportunistic and only visited her to stay on her good side, but wanted her money for various reasons. Marion stated that Karla gets mad and stops contacting her for a while when Marion tells her that she is not entitled to her money.

After a while, Karla reappears, says she misses Marion and apologizes for acting badly. Marion recounted telling Karla that she enjoyed their time together as well, but: “You want all my money and you’re not going to get it” [original emphasis in Lawyer’s notes]. [ 56 ] The Lawyer again raised Marion’s testamentary intentions and Marion said she had made it clear to her previous lawyer that Matthew and Geoffrey should get everything.

She even recounted a conversation with Karla in which Marion quizzed Karla on who she wanted her money to go to when she died, to which Karla responded that she wanted to leave her money to her daughter, leading Marion to say “Exactly – and I want mine to go to my grandsons”. [ 57 ] The conversation turned to Marion and Karla sharing an interest in clothing, leading the Lawyer to make a note querying whether Karla had used Marion’s money for her clothing store.

Marion then digressed into a story about her mother loving clothes and how a lady would call her mother to tell her when new clothes had come into a department store in Saint John. [ 58 ] The Lawyer noted that he explained estate planning documents to Marion; she told him she trusted Matthew for everything and gave the Lawyer his number. Marion’s instructions were that Chris should be the alternate for both the will and an immediate power of attorney. Unfortunately, the Lawyer did not record how he explained the effect and risks of the documents, particularly the immediate power of attorney.

As will be discussed below, when later seen by a capacity assessor, Marion did not describe an immediate power of attorney when asked what she had signed. [ 59 ] Marion described Chris as “very smart” and said that either she or Matthew could be her agent on her personal directive. The Lawyer recorded Marion saying “she doesn’t have to be nice to me, but by golly, she so kind to me” and she “comes by at least once a week and takes me out… Really doesn’t have to… She and Burton were divorced a long time ago”.

Chris’ own evidence was that she had been a relatively infrequent visitor in the time preceding this meeting. [ 60 ] Marion also told the Lawyer that she suspected Karla was lying about having brought Marion’s banking documents in for her to review. Marion described this as a “ruse” and said that Karla had taken away any documents that she had brought in to Marion.

She also stated that she had not seen her bank statements, leading the Lawyer to make an annotation “(what’s been taken so far??)”. [ 61 ] The Lawyer and Marion had spent 2½ hours together and he noted that Marion presented well and was dressed nicely with matching jewelry and her nails painted. He noted that she looked “fantastic for nearly 98” and that she spoke very well and clearly, especially about historic events. [ 62 ] The Lawyer did note, however, that Marion slipped back and forth between the past and present and at times spoke of her brother as alive, as though they were back in the 1940s.

At other times, however, she was very aware that she was in the present and

looking back. The Lawyer made a note querying whether a capacity assessment had been done by a doctor. [ 63 ] The Lawyer noted that, on his way out, he spoke with a staff member who gave him a number to speak to Marion’s social worker, Alexa Grinevitch. His notes curiously state “preferably someone not connected with Karla –> Alexa is too close”. I infer that this is information he received from Chris, who did not favour any involvement from Ms. Grinevitch. [ 64 ] Ultimately, the Lawyer did not speak with Dr. Cullingham or anyone at AgeCare about Marion’s condition.

He also did not investigate who the bank manager or previous lawyer Marion mentioned might have been and thus did not speak with either of these alleged persons. [ 65 ] The same day, the Lawyer made notes of a call to Chris, who “filled me in on the bank and Karla’s actions.” Chris told the Lawyer that she had taken Marion to the bank and discovered the Karla had been put on Marion’s accounts shortly after Ron’s death and that “Karla is trying to get 2 doctors to say that Marion is incapacitated”.

The Lawyer recorded Chris telling him that the bank manager was onside and that “they know what Karla is up to”. [ 66 ] A decision was made to have Marion execute a new will, power of attorney and personal directive the next day. The Lawyer also made a note to write to the bank telling that they are “obliged to make Marion whole”. This entry is telling as to his state of mind at the time, being that financial misfeasance against Marion was afoot. [ 67 ] The Lawyer went back to meet with Marion on March 22, 2019 to execute the 2019 Documents.

He took his mother, a former estates practitioner, with him as a witness. In an email appended to his exhibited notes, she describes Marion as “very welcoming and gracious as well as being impeccably groomed”. Both the Lawyer and his mother deposed that Marion appeared to understand the new documents and that they reflected her wishes. [ 68 ] The Lawyer’s involvement continued as matters escalated between Chris and Karla. He phoned Marion on April 3 rd and she appeared to remember who he was.

Marion talked about being upset by a physical confrontation between Chris and Karla, stating that “Karla is upset over the fact that I’m giving my money to Matthew and Geoffrey”. The Lawyer raised the idea of Marion seeing a capacity assessor and she was open to it, saying “Karla is trying to have everyone think that I’m mentally deranged.” To this, she added: “I’m not doing something fresh. It’s something we’ve been doing for years — it’s not something I’ve just suddenly decided to do.

It’s something Walter and I have always decided to do.” In fact, leaving her estate exclusively to her grandchildren represented a change from the 2017 Will. [ 69 ] While the Lawyer was on the phone with Marion, Chris sent him an email attaching an Emergency Protection Order, issued in favour of Karla, that had just been served on her and Matthew.

Chris also expressed great suspicion towards AgeCare and an intention to confront them about their role in protecting Karla and concealing legal documents such as Marion’s power of attorney and personal directive. [ 70 ] The Lawyer’s firm ultimately arranged for Marion to be assessed by Dr. Arlin Pachet, who testified as their expert at this hearing. The Lawyer’s firm ceased to act when the matter became litigious and his role as a witness became evident. III. Evidence A. Dr. Cullingham [ 71 ] In addition to her clinical notes being made part of the record, Dr.

Cullingham provided an affidavit and was cross-examined at the hearing. Dr. Cullingham’s description of Marion’s cognitive state at the relevant time is as follows: In March 2019, Marion Hunter was suffering significant fluctuations in her level of consciousness to the point where she could no longer retain and process new facts or information, was easily disoriented as to person, place and time, and is unable to understand the consequences of her actions. She is very vulnerable to suggestion. I doubt she was even able to consistently distinguish Chris Martin from Karla Hunter at the time.

Marion also retains some core components of her personality including the ports of social norms and will be likely to want to be rude or say no to anyone. [ 72 ] Dr. Cullingham testified that she had been unaware of Chris’ existence prior to the fall of 2018. She recalled that Marion’s concern with money arose in 2018 at a time when she was getting “progressively delirious with increasing confusion, difficulty recalling where she was, often not able to recall short term events”. With respect to Chris’ involvement thereafter, Dr.

Cullingham deposed that: Marion’s delusions and paranoia themes around money coincidentally occurred during the period that Chris Martin started to visit Marion. Marion’s state of agitation in her delusions concerning Karla usually flared up right after she had contact with Ms. Martin and her family. A specific care plan was developed to deal with the state Marion would be left in . [Emphasis added.] [ 73 ] Dr. Cullingham readily agreed that she had not evaluated Marion specifically for testamentary capacity, but from a medical standpoint.

She agreed that there are different types of capacity, that capacity could vary based on the decision being made and that an individual’s capacity might vary from day to day or even hour to hour. [ 74 ] Dr. Cullingham acknowledged that she had not conducted any formal capacity assessment for Marion in or around when the 2019 Documents were executed. However, she described Marion at that time as “someone being very confused and being very disoriented to time, place or person”.

She maintained that Marion lacked overall capacity and had suffered numerous delusions including performing in a circus, her son being alive, travelling to Montréal on the train and so on. She stated that Marion’s recall of past events was much stronger than her memory of more recent events, which is consistent with the Lawyer’s experience. [ 75 ] Dr. Cullingham also stated that Marion’s condition never improved over the relevant period of time, though it stabilized for

certain periods, as captured in the concept of “stepwise” decline. In respect of Marion’s ability to distinguish between individuals, Dr. Cullingham noted that Marion “has a lot of social graces still intact” but “would not be able to say with confidence that she would know one person from the other if they looked fairly similar”. For example, she testified that Marion would not always know or remember who the doctor was, despite their longstanding relationship. She added that “Marion is very vulnerable. She is someone that part of how we help calm her is by suggestion.” [ 76 ] On May 1, 2019, Dr.

Cullingham made this notation of her weekly visit with Marion: Pt seen resting in her room remembered it was her birthday yesterday and that she turned 98, however was also confused and mentioned that she at a circus act to perform but didn’t have the correct gears wasn’t able to perform. [ 77 ] Finally, Dr. Cullingham testified that she felt very comfortable when she activated the personal directive in November 2018 because Marion “constantly included Karla, asked for Karla during that time”. B. Alex Grinevitch [ 78 ] Ms. Grinevitch is Marion’s principal social worker at AgeCare.

She has navigated the awkward situation of having dueling personal directives and powers of attorney in place for a resident, overlain with a high conflict family dynamic. In this respect, her experience confirmed the significant practical and policy disadvantages of such documents being executed by individuals with marginal capacity, prior to a thorough review of their circumstances. [ 79 ] Ms. Grinevitch confirmed that Marion had always relied exclusively on Karla to assist with managing her finances and providing support.

She testified to observing a pattern whereby Marion would approach her after Chris had visited and report that she no longer wanted Karla making decisions for her. Her impression, based on her knowledge of Marion, was that these comments “seemed coached”. [ 80 ] In cross-examination, Ms. Grinevitch was asked if she had ever observed Chris coaching Marion. She answered “yes” and related an event on January 23, 2019. She testified that Chris had brought Marion into her office and described Chris as adamant that financial abuse was taking place.

She indicated that Chris was not specifically telling Marion what to say, but was insisting that financial abuse was occurring and getting Marion to agree. Marion told Ms. Grinevitch that she wanted Matthew to manage her finances. [ 81 ] Ms. Grinevitch confirmed that Marion presents very well and likes to dress well and be well-kept, though this requires staff assistance. Ms. Grinevitch also stated that Marion was keen to maintain social norms and would “be unlikely to want to be rude or say no to anyone”. [ 82 ] Significantly, Ms.

Grinevitch testified that she had come to know Marion quite well, indeed better than many of the other residents at AgeCare, as she saw and interacted with Marion frequently before she moved to the secure memory-care ward. Ms. Grinevitch’s office was in a location where she would hear Marion yelling for breakfast almost daily. She testified that she would frequently get Marion her breakfast, being cornflakes with brown sugar and fried eggs. [ 83 ] Ms.

Grinevitch confirmed that she had attempted to speak with the Lawyer when he came to AgeCare on March 21, 2019, but that he was unable to wait for her and did not attempt to follow up when he returned to have the documents executed. [ 84 ] Finally, Ms. Grinevitch corrected a statement attributed to her by one of the experts, stating that she had not, in fact, called any bank to inquire regarding Marion’s financial concerns. She explained that she did not take that step because, based on her knowledge of Karla and Marion’s relationship, she believed Marion’s financial concerns were delusions.

She testified that she pressed Marion for more details about these concerns and that Marion was not able to give her any specifics, but spoke about her belief that staff had put her clothes outside in a barrel. [ 85 ] I found Ms. Grinevitch to be a careful, accurate and objective witness. I accept her evidence regarding her personal actions and observations. C. Videos of Marion [ 86 ] Two short videos were entered into evidence. Taken by Matthew in Marion’s room, they show Marion speaking on the phone and a brief confrontation between the parties.

These confirm the witnesses’ description of Marion as a lady who dressed and presented herself impeccably and clearly strove to maintain her dignity despite deteriorating cognitive ability. [ 87 ] In the first, longer series of clips, Karla is seen arriving in Marion’s room with Chris and Matthew already present. Karla says she is taking Marion to lunch but Chris interjects that first they would like to speak to her. Karla responds that she doesn’t think this should be done in front of Marion, but Matthew and Chris insist it should be.

That exchange tellingly illustrates their respective understandings of Marion’s cognitive state. [ 88 ] Matthew then tells Karla he would like information on Marion’s bank accounts, to see her will and to “know what is going on”. After some questioning, Karla advises them that the will was changed in 2017, shortly before Ron’s death. After a further exchange, Chris asks, “tell us what your will says Marion”, Karla responds, “she doesn’t know I bet” and Chris retorts “she does”. Marion somewhat haltingly answers, “well… Ron wasn’t the only one that was going to receive from my will”.

She continues, “but I talked to him different times about...about what he would do. And uh, but I what I want, I want the papers that you were were supposed to send me the copy of. The bank account, and I don’t have them. If you would get those for me I would like that.” Karla agrees to Marion’s request for her papers, but points out that the papers cannot remain in the room as AgeCare does not want financial information in patient rooms due to the risk of theft.

[ 89 ] Chris then begins to lecture Karla on her duties, “as a representative by law, whether as a personal representative or power of attorney”. This is noteworthy, as she appears to know that Karla is Marion’s agent, a fact she did not convey to the Lawyer. The interaction rapidly breaks down and Karla leaves. Before doing so, however, she points out that this all could have been avoided by Matthew and Chris simply asking her these questions. She also tells Matthew that he, his brother, and Karla are in the 2017 Will because that is what Marion wanted when she went in and spoke to a lawyer alone to make it.

Chris questions why Marion would have put Karla in her will, to which Karla responds, “I’ve been her keeper for almost 20 years. Where have you been?” [ 90 ] In the second video, Chris makes a call on Marion’s phone and Marion says, “Karla, it’s Marion. Would you please bring my papers from the bag? My lawyers...uh...article and then uh, my will. Would you bring those with you?” The call then ends. D. Angela Norman [ 91 ] Angela Norman provided an affidavit on which she was not cross-examined.

She states that she accompanied Karla to AgeCare on March 11, 2019, the day after the contentious meeting between Chris, Karla, and Matthew was video recorded inside Marion’s room. She describes watching as Karla showed Marion her financial records. She appends a photo of Karla showing papers to Marion, which she took with her phone to record the event. Ms. Norman states that Marion seemed to have difficulty following the documents and explanations, asked few questions and voiced no concerns that her money was being stolen. E.

Chris Martin [ 92 ] Chris’s evidence does not touch substantially on the issue of Marion’s capacity. Rather, most of her affidavit material relates to her concern that Karla was stealing money. She did testify, however, that she saw Marion right after she got to AgeCare in 2016 and visited her periodically, though her visits were less frequent in 2018. [ 93 ] Chris states that in the fall of 2018, during a routine phone call, Marion asked if Matthew would do her banking for her.

Chris says that, on November 30, 2018, Matthew called her to say that Marion wanted Chris to visit her at AgeCare, which she did shortly thereafter. Chris states that, during this visit, Marion told her she was upset that Karla was refusing to provide her with her most recent will and was withholding her bank, debit and credit card statements and cards.

Chris deposed that this was surprising to her as she thought Marion had been managing her own financial and legal affairs. [ 94 ] Chris describes the events of January 23, 2019, as having been initiated by Marion asking her and Matthew for help obtaining her financial and estate planning documents. Chris also deposes the Marion had told her on several occasions that she wanted Matthew to start looking after her banking for her. Unfortunately, during this meeting, AgeCare was not able to provide Marion’s most recent documents. Rather, they pulled up a copy of her 2003 power of attorney, which had named Ron.

This left Chris, who was not aware of the 2017 power of attorney, with the impression that Karla was acting without any legal authority. [ 95 ] Chris says Marion told her that Karla had failed to bring the documents as requested. According to her evidence, by late February, Marion told her she had still not seen the documents and agreed that she wanted to call a lawyer to address these concerns as Chris suggested. During this period, Chris states that AgeCare staff repeatedly told her to speak to Karla, describing her as Marion’s “agent”.

Chris again said she was surprised by this as she continued to believe that Marion was managing her own affairs. [ 96 ] Chris also testified that did not know how to reach Dr. Cullingham, saying, “I had no idea who the doctor was”. She also “didn’t feel the need to speak to anyone at AgeCare about Marion’s capacity, [because] when I visited her she was quite pleasant and engaged”.

These were surprising answers from someone who wanted to be named on Marion’s power of attorney. [ 97 ] I find Chis gave an evasive answer when asked whether she told the Lawyer that Marion was on a locked memory-care ward: Q: ... did you happen to bring that up at all? A: I am not sure that I recall that but I probably would have been able to do so if it had been on my mind at that time. [ 98 ] This curiously twisted diction suggests to me that Chris understood the issue with not informing the Lawyer of Marion’s situation. She also downplayed Marion’s tendency to refer to people as “Burton”.

Both these facts lead me to conclude that Chris’ instructions to the Lawyer were designed to convey that Marion was fully compos mentis . [ 99 ] The intensity of Chris’ suspicion towards Karla was demonstrated by her overt doubt about the truthfulness of Angela Norman’s affidavit. Her view may be related to the fact that Ms. Norman is also the accountant who prepared the required accounting of Marion’s funds ordered by this Court in 2019. There is nothing before me to indicate that Ms.

Norman’s evidence was untruthful and Chris’ counsel wisely did not suggest that this Court should question her unchallenged sworn evidence. I find that Chris’ intransigent scepticism on this issue demonstrates hostility and ill-will towards Karla that transcends what is reasonable or rationally supported in the circumstances. [ 100 ] This conclusion is supported by Chris’ assertion that Karla was responsible for moving Marion into the memory unit and her refusal to acknowledge that this move was driven by AgeCare’s professional judgment.

When this was put to her, she answered that she has not seen the documentation and went so far as to testify that, “I doubt that [AgeCare] did what they did why they did it”. [ 101 ] I can find no basis for this level of distrust or suspicion in the evidence before me. AgeCare miscommunicated with Chris about which power of attorney was on file, exacerbating the tensions between her and Karla.

Beyond that, nothing suggests that AgeCare has done anything other than care professionally for an increasingly difficult and unwell resident and tactfully navigate a hostile family dispute. [ 102 ] The fact that Chris remains suspicious of AgeCare leads me to find that she has lost perspective surrounding the facts of this

case. This finding is relevant to the task at hand, in so far as it suggests how the Lawyer’s approach to the case may have been coloured by the tone and contents of Chris’ instructions to him. F. Karla Hunter [ 103 ] Karla’s evidence also is not particularly germane to capacity. Her position is that Chris and her sons are likely the source of Marion’s delusion that she is stealing money and that this is very upsetting to Marion and not in her best interests. Her affidavit evidence largely describes the history of her relationship with Ron and Marion’s move to Calgary and subsequent care situation. Karla deposes that she played no

part in the creation of the 2017 Will or contemporaneous power of attorney and personal directive. [ 104 ] Karla asserts that, after Ron’s death, she became Marion’s primary source of social, emotional and other support. Consistent with the medical notes, Karla recounted Marion’s significant decline in the fall of 2018, which involved abnormal behaviour, delusions, refusal of medication, shouting and other aggressive behaviour. [ 105 ] She indicates that Marion’s other family members had little to do with her until late 2018 and early 2019 when they “suddenly began to display an interest in her and her money”.

Karla asserts, and the professional care staff confirmed, that a plan was formulated to deal with the circumstances and calm Marion. [ 106 ] In one of her affidavits, Karla states that she provided her accounting of Marion’s finances to the Public Guardian and Trustee in September 2019, as required by court order. She indicates receiving no questions or complaints. [ 107 ] She also states that, on February 20, 2020, someone impersonating Marion’s late husband called Ford Nelson, the lawyers who prepared the 2017 Will, asking for a copy of it.

Ford Nelson properly refused to cooperate with this improper attempt to gain client information. [ 108 ] Karla filed affidavit evidence explaining the uses she made of Marion’s funds and the transactions that Chris has flagged as suspicious. She acknowledges that on one occasion she inadvertently used $125 from Marion’s account to pay for a personal expense, which she has since reimbursed. [ 109 ] Karla’s evidence is that, after the March 10, 2019 confrontation, she gathered Marion’s financial statements and returned the next day with Ms. Norman as a witness.

She says she showed Marion the documents and explained them to her but that Marion did not appear to really understand what was happening and raised no objections or accusations that anything improper was taking place. G. Dr. Pachet’s capacity assessment [ 110 ] In April 2019, Chris retained Dr. Pachet to perform a capacity assessment of Marion. Dr. Pachet is a neuropsychologist and well-known expert on capacity issues. He was qualified by consent to provide an expert opinion as to Marion’s capacity on the date he met and assessed her. Their meeting took place on April 11, 2019 and lasted 75 minutes.

He describes Marion as highly engaged, social, and amicable. Despite apparent memory impairments, he found her communicative and euthymic. He notes in his report that, after a couple of repetitions by him of the purpose, nature, and consequences of the assessment, she was able to answer questions about it and give informed consent. [ 111 ] Dr. Pachet reported that Marion was able to describe the nature and effect of the 2019 POA and 2019 PD, stating that a personal directive involved “picking someone to look after your personal affairs when you can’t handle it properly yourself”.

He reports Marion telling him that a power of attorney involves “picking a person can handle the money, the financial side of things when you are not capable of handling money any longer”. She further said “I picked Ronald to manage things if I needed help, but he passed away. Now I want Matthew to help me, I trust them, he visits me, he knows what I want”. [ 112 ] On its face, Marion’s description of these instruments suggests a fairly lucid understanding of their nature. Karla’s counsel, however, aptly points out two facts that undercut that impression. First, Marion told Dr.

Pachet that she had had Ron making decisions for her before and now wanted Matthew. This seemingly straightforward description of her desires omits the entirety of the previous two years during which Karla had assisted Marion, at her request, and with her full confidence for much of that time. [ 113 ] This more nuanced consideration of Marion’s raises at least three concerns. First, consistent with the entire breakfast situation, it suggests she has little or no functional grasp on what is taking place in her life on a day-to-day basis in the near-term past.

Second, it suggests that she does not know that the effect of what she signed was to change her attorney from Karla to Matthew, rather than from Ron to Matthew. Third, it suggests she has no idea that she has been incapable of managing her own affairs and wholly dependent on Karla to do so for a considerable period of time. This raises very serious questions as to her general situational awareness and the immediate effect the 2019 POA would have. [ 114 ] This ties into counsel’s second point, namely that what Marion described to Dr.

Pachet was a springing power of attorney that would come into force if and when she came to be incapacitated. In reality, however, the document she signed was an i mmediate power of attorney. In a very literal sense, therefore, it appears that Marion may not have understood the effect of the document she signed. Significantly, Dr. Pachet does not report Marion recalling or recounting that she has given Matthew complete access to and control over her assets. [ 115 ] There were further signs of lucidity in Marion’s interview with Dr. Pachet.

She was able to recall the Lawyer’s name and that he had helped arrange the meeting. She repeated to Dr. Pachet what she had told the Lawyer, namely that she had always wanted all her money to go to her grandchildren, and was able to articulate a rationale for doing so. As noted, this is not consistent with the 2017 Will. Dr. Pachet reported that she was able to provide an approximate value of her assets, though the substance of her answer on that point is not recorded.

[ 116 ] Dr. Pachet performed a MoCA test on Marion, which resulted in a score of 13. He characterized this as poor, demonstrative of significant memory and executive function deficits, and moderate to severe overall cognitive impairment. [ 117 ] I asked Dr. Pachet to provide a subjective rating of Marion’s capacity. He opined that her capacity in general would rate a 3/10, or very poor. He distinguished this from what he described as her capacity to execute a personal directive or power of attorney.

Dealing just with his narrow conception of the nature and effects test, he rated her capacity at 7-8 out of 10. [ 118 ] Based on these tests and interviews, Dr. Pachet concluded that Marion would have had the legal capacity necessary to create a new power of attorney, personal directive and will during their meeting on April 11, 2019. [ 119 ] While he was aware of the previous Declarations of Incapacity (though not their scope), Dr. Pachet did not have Marion’s medical and care records at the time of the assessment. He later received these and provided an Addendum Report.

In it, he notes “I have no information that questions the veracity of Mrs. Hunter’s concern regarding the actions of Karla. However, I do appreciate that delusions of malfeasance are quite common among those struggling with a dementing process”. [ 120 ] In his Addendum Report, Dr. Pachet observes that the medical records “confirm my concerns regarding Mrs. Hunter’s cognition, ease of confusion, and vulnerability to influence”. However, he maintains his earlier conclusions that she demonstrated the requisite capacities during their meeting. H.

Kim Presiloski’s Report [ 121 ] Kim Presiloski, a Registered Nurse with considerable professional expertise in capacity assessment, was tendered as an expert witness by Karla. I qualified her to give an opinion on the assessment of decisional mental capacity including the creation of powers of attorney and personal directives. This permitted her to opine on Marion’s capacity on March 22, 2019 through the lens of a retrospective capacity assessment, constructed through interviews and the documentary record. Ms. Presiloski did not have a chance to interview Marion.

However, I found that she approached her task in good faith and with diligence and that her report was a credible expert opinion. [ 122 ] Ms. Presiloski noted that, in care settings like where Marion lived, a potential donor’s social worker and attending physician normally would be closely involved in assessing them for fitness if they were contemplating executing a personal directive or power of attorney.

She also noted that it is unusual for an individual with an activated personal directive to request to complete a new personal directive or power of attorney. [ 123 ] After conducting a thorough review of the surrounding record, Ms. Presiloski concluded that she could not say whether Marion had the requisite capacity to enact the instruments at issue in March 2019. [ 124 ] Ms. Presiloski candidly accepted the limitations inherent in a retrospective capacity assessment.

While I find her report a useful inventory of the factors relevant to the Court’s determination, I do not find it necessary to place much evidentiary weight on her conclusion. I. State of the financial record [ 125 ] This proceeding originally took the form of an urgent application for an accounting in respect of Karla’s handling of Marion’s funds. An order was made in 2019 directing Karla to provide an accounting, which she did. In the proceeding before me, the parties did not seek to litigate whether any financial misfeasance had occurred.

The issue arose collaterally, however, in relation to whether Marion’s concerns that drove this entire unfortunate situation were in fact delusions. Chris’ counsel urges me to find that the record does not definitively establish that Marion’s concerns about Karla stealing her money were delusions. [ 126 ] A number of Marion’s bank and investment account records, together with the accounting, are in the record.

I can go so far as to observe that there is nothing on the face of these documents that suggests or is obviously consistent with misappropriation of funds, much less wrongdoing on a large scale. [ 127 ] In her affidavit, Dr. Cullingham states that, after Ron’s death, Marion stated that she wanted Karla to be her agent. She goes on to say: “Marion Hunter has always been consistent in expressing her trust of close relationship to Karla Hunter”.

These statements during moments of lucidity undermine the notion that Marion had rationally formed concerns about Karla’s handling of her affairs. [ 128 ] The records and testimony also show that Marion’s concerns about money were expressed contemporaneously with other ideations that were clearly delusional. Beyond the clothes-in-a-barrel incident related by Ms. Grinevitch, Marion told people that she had been called by her bank manager, who had relayed information regarding Karla’s alleged misdeeds. As discussed below, I find that this call was a figment of Marion’s dementia.

Thus, Marion’s occasionally manifested belief that Karla was stealing her money was closely tied to other, clearly delusional expressions and behaviour. IV. Findings on the evidence [ 129 ] It is not difficult to discern what precipitated this case, namely an unpropitious combination of Marion’s cognitive decline and personal animosity among those closest to her. After her son’s death, Marion declined sharply.

By 2018 at the latest, she was beginning to have delusions of significant magnitude, including that she was being financially exploited. [ 130 ] Karla took on the role of Marion’s caretaker, likely both while Ron was alive but unwell and after his passing. She did so out of kindness and to honour the memory of her late husband, whom she still loves very much and whose passing still causes her evident pain. I find that she carried out this thankless role with caring and diligence, as observed by the staff at AgeCare.

[ 131 ] Matthew loves his grandmother very much and his core interest is her well-being. While a regular, if not frequent, visitor, he likely was not as aware of the full nature and extent of her decline. When she began to express her delusions of financial misfeasance to him, he was understandably concerned and reported these to his mother. [ 132 ] Chris had been an infrequent visitor in the period of Marion’s steepest decline and did not appreciate her cognitive state. She appears to have fixated rapidly on the allegation of misfeasance, leading to confrontations with Karla.

I am persuaded that Chris’ dominant interest is maintaining the integrity of her sons’ inheritance and that whatever animus Chris may have harboured towards Karla prior to these events was magnified at the suggestion that Karla was misappropriating funds ultimately destined for Chris’ children. [ 133 ] For her part, Karla likely harboured no affection for Chris. I can infer from the evidence that she was a support in Ron’s life in the immediate aftermath of his acrimonious divorce from Chris. She also shouldered the burden of providing caretaking for Marion for some years.

Given this background, she clearly took deep and immediate umbrage at the suggestion, from Chris in particular, that she was acting improperly and out of financial self-interest. [ 134 ] All of this resulted in a rapidly escalating and entirely unnecessary conflict between the parties, into which the Lawyer was somewhat unwittingly ensnared and Marion’s professional caregivers have been unhappily dragged. A. The Videos [ 135 ] In the first video, Marion’s response to being asked about her 2017 Will is telling. She clearly has no meaningful idea of what is in the 2017 Will.

Her first reference is to Ron, who had been deceased for almost two years. She demonstrates a dependency on, and desire for, someone else to tell her what she should be doing with her affairs. She then quickly deflects to another issue. In the second, Marion appears conversational, though it is clear she is struggling for words and concepts.

She is trying very hard to be meaningfully present, but her resources for doing so are limited. [ 136 ] On a balance of probabilities, I find that, in the moments before each of these recorded interactions, Chris or Matthew had told Marion what was about to happen and what to ask for. Despite this and her obvious efforts, Marion was barely able to articulate a coherent request and was unable to name the items she wanted with any specificity. [ 137 ] Perhaps contrary to their intended purpose, the videos demonstrate Marion’s mental limitations.

They do not persuade me that she had the capacity to understand the nature and effect of the 2019 POA when it was executed. B. The Lawyer’s Involvement [ 138 ] In most cases, the evidence of the independent legal professional who acted for the donor or testator when estate planning documents are created will provide the best evidence of capacity. In many ways that is also true in this case, though that evidence leads to the conclusion opposite to that reached by the Lawyer himself. [ 139 ] I hasten to say that the Lawyer approached his task and obligations with diligence and good faith.

He impressed me as sincere and dedicated to his client’s well-being. That said, his perspective on the matter was excessively influenced by what he was told by Chris, who hired him and paid the bills. This case provides a cautionary tale for lawyers who are drawn into complex and often highly conflictual family dramas surrounding older people’s money. My findings in this area are consistent with and informed by a most helpful paper on estates practice: Shelley E.

Waite, Prudent Practice: Acting for the Aging Client , (Legal Education Society of Alberta, March 1, 2017). [ 140 ] It is clear from the Lawyer’s notes that he believed he was walking into a situation of elder abuse and financial exploitation by an ill-intentioned family member who had improperly gained control over the elder’s financial affairs. The urgency with which he approached the situation shows that he was doing his best to solve this ‘problem’ in a timely way. [ 141 ] This dynamic began when Chris told him that Marion was a competent and capable lady, albeit of advanced age.

He was not told that she was in a secure memory-care facility. He was not told that she had been declared to lack capacity in all matters, including financial affairs, by two doctors. He was not told that the alleged malfeasant was acting under a properly activated personal directive and power of attorney. He was not told that his client had been suffering extensive delusions, including financial exploitation, for some time.

In short, the assumptions under which he approached dealing with Marion were largely inaccurate and underinformed. [ 142 ] In hindsight, his interaction with Marion revealed a great number of red flags. On several occasions, as the Lawyer himself noted, Marion appeared to be in the past. She began their first phone call by talking about her father’s store in Saint John, which I infer would have been 80 or 90 years ago. This, in my view, was an odd and contextually inappropriate way to begin a conversation with a new lawyer coming to assist with estate planning.

While the Lawyer noted that Marion then shifted into understanding that she was speaking about the past, an excessive tendency to do so out of context is a red flag when dealing with a person of advanced age suffering from dementia. [ 143 ] Marion consistently got her late son’s name wrong, referring to both him and the Lawyer as “Burton”, indicating that she may have been less than clear as to individual identities. [ 144 ] Marion wondered how her money had come from New Brunswick to Calgary and had little idea about how much money she had, raising concern as to her knowledge about her financial affairs. [ 145 ] The Lawyer did not attempt to corroborate some of Marion’s easily verifiable statements.

For instance, Marion believed that that day, for the first time, she finally had gotten the breakfast she wanted. The easily discernible truth was that she had received the same breakfast virtually every day, often from the same person. Marion spoke, unbidden, about having recently owned and driven a vehicle. It would have been easy enough to confirm whether Marion owned a vehicle or was allowed to drive. These incorrect statements raise

significant concerns about Marion’s cognitive ability concerning events, individuals’ identities, causation, her place in time and space, and her overall circumstances. [ 146 ] Of greater concern were the statements Marion attributed to the “bank manager”. With respect, the Lawyer should have been aware that a bank manager would not make statements of that kind about a customer and would have had an obligation to take action if he suspected elder abuse.

Indeed, elsewhere in the record, there is evidence that the bank did precisely that when Chris made allegations of financial misfeasance directly to them. [ 147 ] In addition, Marion told the Lawyer that she previously had seen a lawyer and had told him that Karla wanted her to leave her estate to her, but that she wanted it to go to her grandsons. [ 148 ] I find this improbable. The evidence before the Court is that the 2017 Will was prepared by counsel, with Ron’s assistance, and distributed Marion’s estate equally in three shares to Matthew, Geoffrey, and Karla, if Ron predeceased her.

There is no evidence that Karla took Marion to see a lawyer about changing the 2017 Will or that a lawyer told Marion that Karla would not be in her will. Since Karla knew that Marion had lacked capacity for some time, I find that Marion’s statements that Karla was encouraging her to change her will are the products of delusion or suggestion. [ 149 ] These statements about the bank manager and lawyer were a red flag that Marion was delusional, had been extensively coached or, at a minimum, that she was, as Ms.

Grinevitch, described, “an anxious and elaborate storyteller.” In any event, they should have raised concern about Marion’s capacity and Chris’ role in retaining the Lawyer to effect a change in control over Marion’s affairs. [ 150 ] The same is true respecting Marion’s statements about Karla’s supposed avarice. Ironically, Marion told the Lawyer that Chris was highly financially motivated, leading to her contentious divorce from Ron.

A conversation with Marion’s doctor and social worker would have alerted the Lawyer that Marion’s statements about Karla were at odds with their observed reality and Marion’s statements to others. Such a conversation also would have made the Lawyer aware that Marion had a fairly current will and a duly appointed legal agent. [ 151 ] It is particularly strange that the Lawyer’s notes indicate that “Marion’s instructions” are to get in touch with the bank manager and previous lawyer and that his “next steps” are to contact those people and the AgeCare manager.

It is unfortunate that he did not attempt to do any of this as I find it would have disabused him. [ 152 ] The Lawyer found Marion to be animated, conversational, congenial, and apparently clear on her wishes and intentions. I accept that what he saw, processed through the lens he came in with, justified his conclusion that Marion had capacity to execute the documents he prepared for her. In other circumstances, this might be persuasive or even determinative evidence of capacity.

In this case, however, I find that the Lawyer suffered confirmation bias, finding what he was primed by Chris to expect, missing obvious red flags, and proceeding with urgency to do what he had been led to believe needed to be done to protect this lovely older lady. Accordingly, I place less weight on his evidence than I otherwise might. [ 153 ] Furthermore, the Lawyer’s notes make only a generic reference to having explained the estate planning documents.

Because the test for capacity to create a power of attorney relates very specifically to the donor’s understanding of the nature and effect of the document, the words used and Marion’s responses mattered greatly. This is one of the few points where the Lawyer’s notes of their conversation leave me unsatisfied. Unfortunately, it was the critical moment. Particularly given Marion’s subsequent description of the power of attorney to Dr. Pachet, I have considerable doubt that she understood the immediate effect of the 2019 POA. [ 154 ] I do not wish to be unduly critical of the Lawyer.

His experience with this case, however, highlights the invidious trap awaiting legal professionals recruited a third party to act on behalf of elderly individuals in the disposition/control of their assets. It is critical that lawyers in this position keep a keen eye on who their client truly is. In this instance, Chris retained and instructed the Lawyer, but the real client was Marion. It is important that lawyers maintain scepticism and objectivity when drawn into these situations, obtain as much information from as many objective sources as possible and be wary of haste.

As the author of Prudent Practice: Acting for the Aging Client , stated at p 5: “Be polite but also do your homework. Don’t assume the rush is in fact real”. C. Dr. Cullingham’s evidence [ 155 ] I find that the best evidence of Marion’s capacity is found in the progress notes recorded at AgeCare, as interpreted by her long- time personal physician, Dr. Cullingham. I accept her evidence regarding Marion’s capacity.

No other witness had similar longitudinal experience with Marion, viewed through the eyes of a trained professional geriatrician, coming from a position of objectivity and interest solely in Marion’s well-being. [ 156 ] Chris’ counsel urged me to find that Dr. Cullingham was not in fact objective and favoured Karla’s position in this litigation, notwithstanding her lack of knowledge as to the true financial state of affairs. I cannot accede to that submission. Dr. Cullingham weighed her words carefully, never overstating, and endeavouring to be as fair and informative as she could be.

Having heard and seen her on the stand, I find her a completely credible witness and an obviously committed and deeply caring physician. Marion is very fortunate to have her care. [ 157 ] Accepting Dr. Cullingham’s evidence, I find that Marion’s capacity had been in consistent decline for close to two years by the time she signed the contentious documents. I find that she suffered extensive delusions, including about financial exploitation. [ 158 ] I further accept Dr. Cullingham’s evidence that, in medical terms, Marion lacked capacity over her affairs generally and her financial affairs specifically.

I accept Dr. Cullingham’s evidence that Marion was unlikely to be able to distinguish between similarly- situated individuals and was frequently not oriented as to time and place. While it is a minor point, I note that collateral confirmation is found in the record as Marion, at least twice, said things to the Lawyer that suggest she was conflating Chris and Karla (who lived near her and who was doing the laundry).

As well, it is unclear that her references to one of her former daughters-in-law being avaricious and likely to “grab everything” was a reference to Karla, as it is out of keeping with the trust she placed in Karla during lucid moments and

the objective evidence I heard of Karla’s dedication to Marion’s wellbeing. D. Dr. Pachet’s Evidence [ 159 ] I find that Dr. Pachet approached his task with considerable expertise. However, a number of factors lead me to place less weight on his opinion about Marion’s capacity at the time of execution of the documents in question. First, similar to the Lawyer, I find that Dr. Pachet came to his work with a partial and inaccurate picture of Marion’s condition. He had not been provided full information regarding the declarations of incapacity and had none of Marion’s medical records. Dr.

Pachet stated in his report that he had not received information to suggest that Marion had been declared to lack capacity regarding financial matters when, in fact, she had. The declarations of incapacity signed by Dr. Cullingham and Dr. Majeed in late October and early November 2018 expressly extended to financial decision-making. [ 160 ] Dr. Pachet had not spoken to Marion’s attending physician and appears to have approached the case with a sense that Marion’s concerns over financial misfeasance were genuine and informed.

In cross-examination, he told the Court that he would have concerns if someone decided to change a trusted care-giver to someone much less involved with them; he was not informed that this had occurred here. [ 161 ] Significantly, he also told the Court that he would have concerns regarding capacity if he learned that the perceived wrongdoings underlying Marion’s changes in her personal affairs were not genuine. As I find that this is the case here, on Dr. Pachet’s own fair-minded evidence, this undercuts the force of his conclusions. [ 162 ] Further, it was clear that Dr.

Pachet attempted to apply a standard of capacity lower than that with which he felt comfortable as a health practitioner. Indeed, in previous expert testimony, he had advocated for a more context-sensitive approach that considers the donor’s ability to comprehend external circumstances, situations, and relationships in greater detail. Specifically, in Pirie v Pirie , 2017 ABQB 104 at para 32 , Dr. Pachet is said to have opined that “ the test [for capacity to execute a power of attorney] should include an analysis as to the rationale for the Revocation and new appointment”.

It was evident that, from a medical standpoint, he holds to this view, but has adjusted his perspective to apply what he perceives to be the legal test. [ 163 ] Ultimately, I find that Dr. Pachet’s opinion that Marion had capacity was as much or more a product of his attempt to apply his legal understanding of this Court’s treatment of his testimony in Pirie as it was an application of his clinical expertise.

I find that he has overcompensated for the rejection of his conception of the requisite level of capacity in Pirie by applying a minimal, bare-bones standard of capacity that fails to consider the donor’s circumstantial awareness. [ 164 ] The usefulness of Dr. Pachet’s report was diminished by this emphasis on legal concepts in preference to medical/psychological evaluation. Indeed, I learned of Marion’s low MoCa test score and Dr. Pachet’s assessment of her capacity at 3/10 overall only through my own questions. I appreciate that Dr.

Pachet attempted in good faith to bridge the gap between medical and legal concepts of capacity. However, his area of expertise is psychology, not law. [ 165 ] While Marion may well have presented as having the bare minimum level of capacity necessary to execute a power of attorney during her interview with Dr. Pachet, for all the foregoing reasons, I place less weight on his opinion of her capacity. E. Factual Conclusions [ 166 ] I find that Marion had minimal cognitive capacity at the time the 2019 Documents were executed.

Further, I find that there is no evidence that Marion had well-founded concerns about Karla’s handling of her money and that those concerns were the product of the sort of delusions of financial victimization that Dr. Pachet testified are common amongst dementia sufferers. I find it more likely than not that much of what Marion said to the Lawyer and to Dr. Pachet was the product of coaching by Chris and/or Matthew, though I say this without attributing malice to either of them.

Marion’s statements likely were her parroting what she had been told, operating in conjunction with her delusional ideation. [ 167 ] Consistent with Dr. Cullingham’s evidence, I find that Marion was poorly situated in time and place, was confused as to individual identities, lacked insight into the details and nature of her own affairs, had no idea what her current financial and testamentary arrangements were or how they had come about, had little or no insight into her own medical condition and circumstances and was very highly suggestible. [ 168 ] I find that, at the time of her interview with Dr.

Pachet, she probably did not understand that she had signed a power of attorney with immediate effect nor that her 2017 personal directive was active. I find she had no appreciation that she had already been deemed incapacitated and did not grasp the effect of this upon her autonomy over her affairs. [ 169 ] Based on the evidence before me, I find that Chris had no idea of Marion’s true cognitive condition.

For some reason, Matthew failed to convey to her the discussion at the October 2018 care conference, specifically that Marion was suffering significant decline and delusions and had been declared to lack capacity over all of her affairs, including financial matters. V. The Law A. The legal meaning of capacity to execute a power of attorney [ 170 ] Capacity to execute a power of attorney is not defined by statute in Alberta. Rather, s 3 of the Powers of Attorney Act , RSA 2000, c P-20 outlines the degree of capacity without which one cannot create a power of attorney.

Incapacity of execution 3. An enduring power of attorney is void if, at the date of its execution, the donor is mentally incapable of understanding the nature andeffect of the enduring power of attorney. [171] The so-called “nature and effect” test is derived from this provision. The leading Alberta case interpreting this standard isMidtdal v Pohl, 2014 ABQB 646. In that decision, Moreau J (as she then was) adopted the approach formulated by Lord Hoffman in theEnglish decision of Re K; Re F [1988] 1 All ER 358 (ChD).

At para 92, she set out that this requires the donor to possess four key facetsof knowledge and awareness: Hoffman J held that it was not necessary for the donor to be capable of managing his or her property and affairs on a regular basis.Capacity to execute a power of attorney would be established if the donor understood that (

a) the attorney would be able to assume complete authority over the donor’s affairs; (

b) the attorney could do anything with the donor’s property that the donor could have done; (

c) that the authority would continue if the donor became mentally incapable; and (

d) would in that event become irrevocable without confirmation by the court. [172] These

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