AW v PR, 2021 ABQB 804

Court of Queen’s Bench of Alberta Citation: AW v PR, 2021 ABQB 804 Date: 20211008 Docket: 2101 07274 Registry: Calgary Between: AW Applicant/Respondent - and - PR and Alberta Health Services Respondents/Applicant MLR also known as MLP also known as Missus MLP also known as Missus MLR Represented Adult _______________________________________________________ Endorsement of the Honourable Madam Justice B.E. Romaine _______________________________________________________

[ 1 ] PR and AW are co-agents of the Represented Adult under both powers of attorney and various Personal Directives. The Represented Adult has been in and out of various active and long-term facilities since March, 2021. She is 82. The co-agents do not agree on where the Represented Adult should live and what facilities are required for her care. [ 2 ] On June 7, 2021, Jeffrey, J. gave an order that included the stipulation that the Represented Adult would no longer be able to reside at home.

He also re-initiated the May 20, 2021 order of Sidnell, J. which directed that there be a capacity assessment of the Represented Adult.

Justice Jeffrey's order included a paragraph that set out a "tie-breaker" solution, which is no longer realistic in the circumstances. [ 3 ] Events that occurred while the Represented Adult was resident in the Centennial Centre for Mental Health and Brain Injury (CCMHBI), where she had been since July 15, 2021 under a form 1 order effective July 27, 2021 and renewed on August 27, 2021, led to this application and cross-application. [ 4 ] The Represented Adult had been undergoing a comprehensive capacity assessment by her care team, which included her psychologist and an attending psychiatrist. [ 5 ] PR and AW were asked to attend a meeting with the care team on September 23, 2021. [ 6 ] The capacity assessment report notes, among other things, that the Represented Adult does not appreciate the consequences of her actions, that she has no testamentary capacity, and is at increased risk for undue influence and coercion.

She has been diagnosed with dementia, both Alzheimer's and vascular. The report concludes that the Represented Adult needs assistance with daily living, specifically 24 hour supervision. She lacks insight into her abilities, she is not oriented to place and time and is at risk for wandering. The report suggests that she should be in a closed unit.

The care team recommended that the Represented Adult be placed in a long-term care facility or a facility that has designated supportive living for dementia patients. [ 7 ] PR did not agree with this assessment, and discharged the Represented Adult from CCMHBI against medical advice and in contravention of the Jeffrey order. He is attempting to care for the Represented Adult in his own home, although he is 88, resides in rural area where home care is not readily available, and has mobility issues.

PR has in the past proved incapable of caring for the Represented Adult, particularly now that she requires 24 hour care. [ 8 ] PR notes that, in her personal directives, the Represented Adult expresses the wish that she remain in her own home, but concedes that this preference is qualified by the phrase "as long as possible", and that the Represented Adult provided her preferences for when at-home care is no longer possible. [ 9 ] Both AW and PR apply to have the other removed as co-agent. I agree with AW that PR must be removed as a co-agent under the relevant documentation.

Although, PR says that he has removed the Represented Adult from care because he loves her and wants to respect her wishes to live at home, he has demonstrated an inability to appreciate and make the necessary decisions with the best interests of the Represented Adult in mind, no matter how difficult these decisions may be. [ 10 ] I therefore order that: 1. Paragraph 3 of the Order of Justice Jeffrey shall no longer be relied upon for the contemplated purpose. 2. PR's authority under any subsisting Power of Attorney, Personal Directive or Living Will is hereby revoked. 3.

AW is appointed as the sole attorney and agent for the Represented Adult. 4. PR must allow AW, with the assistance of Alberta Health Services Paramedics, to move the Represented Adult to a facility or home where the Represented Adult is able to receive the 24-hour care that she requires and was recommended by her care team on September 23, 2021 within 48 hours of this order. 5.

If PR fails to allow AW to transfer the Represented Adult within the 48-hour period, AW may without further application to the court contact the Linden, Alberta Sheriff's Detachment or Royal Canadian Mounted Police, and present them with this Order, which they shall then rely upon for the purpose of facilitating, in conjunction with the Alberta Health Service Paramedics and AW, attendance at PR's home whereby they will remove and transport the Represented Adult to an available and appropriate facility or home. 6.

In the alternative, the Represented Adult will be transported to a designated health facility at the discretion of Alberta Health Services. 7. Neither PR nor AW shall interfere with the Long-Term Care placement procedure. Upon admittance to a health facility, the Represented Adult shall not be discharged, under any circumstance, absent further Order of this Court.

8. PR may have supervised contact with the Represented Adult after she is transferred to an AHS facility. 9. PR and AW are ordered, under s.10 of the Powers of Attorney Act , to bring in and pass accounts with respect to any transactions entered in pursuance of their appointments as co-agents. 10. If Alberta Health Services is unable to admit the Represented Adult to a facility, they will make suitable alternative arrangements. 11.

If Alberta Health Services is unable to procure a bed or a suitable setting for the Represented Adult when she is transferred from PR's residence, she will be transported to the private residence of KC, where appropriate nursing care and support shall be provided by Alberta Health Services. If this is not possible, private nursing services will be utilized as a last resort. [ 11 ] Unfortunately, the Represented Adult can no longer be admitted to the CCMHBI, as her bed has been filled and there is a waiting list. I therefore make the following interim directions for her care:

a) on a temporary basis, at any Long-Term Care facility within Alberta that has an available bed, in a setting capable of providing her prescribed level of care; and,

b) on a permanent basis, a placement at any Long-Term Care facility identified in the Order of Justice Jeffrey. [ 12 ] I make no findings with respect to the allegations and cross-allegations of financial impropriety or undue influence. This was an emergency application in morning chambers, with limited access to materials. The other issues raised in the application should be directed to a special hearing. Dated at the City of Calgary, Alberta this 8 th day of October, 2021. B.E. Romaine J.C.Q.B.A. Appearances: Mark Schulz for the Applicant, AW Cale Ellis-Toddington for the Respondent, PR Sarah Louw for the Respondent, Alberta Health Services