ELAINE GILLESPIE v. DIANA-LYNNE HOLDEN, 2003 SKQB 140

2003 SKQB 140 Q.B.G. A.D. 2002 No. 1704 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF AN ORDER FOR THE APPOINTMENT OF A GUARDIAN FOR FRANCES MARY ANDERSON PURSUANT TO THE ADULT GUARDIANSHIP AND CO-DECISION-MAKING ACT BETWEEN: ELAINE GILLESPIE and DIANA-LYNNE HOLDEN APPLICANTS - and - BROOKLYN ANDERSON RESPONDENT Michael Megaw for the applicants Brooklyn Anderson (unrepresented) JUDGMENT KYLE J. March 26, 2003 [ 1 ] Elaine Gillespie and Diana-Lynne Holden have applied to be appointed personal and property guardians of Frances Mary

[ 1 ] Elaine Gillespie and Diana-Lynne Holden have applied to be appointed personal and property guardians of Frances Mary Anderson, their mother, and due to an objection by their brother Brooklyn, a hearing took place at which testimony was received from each of the six children of Frances Anderson and from two medical doctors, one a general practitioner and the other a psychiatrist. [ 2 ] The applicants have tendered evidence which supports the material filed in which respect they are in full compliance with The Adult Guardianship and Co-decision-making Act , S.S. 2000, c. A-5.3 .

In the result they are hereby appointed personal and property guardians of Frances Anderson. [ 3 ] Frances Anderson is a widow of 81 years of age who has had mental problems since 1958 and has recently become even less capable of looking after her affairs than was the case during the many years of her partial incompetence. [ 4 ] Elaine Gillespie and to a lesser degree her sister Diana have been involved in the financial affairs of the family over the years. Elaine has “kept the books” especially since her father died 15 years ago.

To have her continue to do so under direction and supervision of this Court would seem consistent with the intentions of the Act . [ 5 ] Elaine was previously working under a power of attorney but due to certain actions by Brooklyn she sought this authority as it would forestall further problems of the sort recently encountered. While Brooklyn objected he did not establish the validity of his concerns. His unsubstantiated concerns were the reason for the hearing which has given rise to unnecessary costs. [ 6 ] The estate is quite large.

I see no necessity for a bond as the guardians are doing just what they have done all along without Court supervision. If the Public Guardian and Trustee can be convinced to waive the requirement I would not require a bond which is, after all, expensive. The guardians should report to the Court for a review annually as required by s. 54(1) of the Act and a copy of their report should be given to each of their siblings.

All of the siblings appear to be intelligent, articulate people who have shown no signs of any dissent as to the proper management of the personal or property affairs of Frances Anderson. [ 7 ] With the issue of the order, in substantially the form sought, powers of attorney will no longer have validity. [ 8 ] Testimony was received in respect of a will signed by Frances Anderson at a time when her mental competence was subject to question. The law provides however that testamentary capacity may be found to exist at a time when managing a substantial estate would lie beyond the abilities of the testator.

The will in question provides for an equal division of her estate among her children and it was intended to supplant a somewhat inadequate holograph document which gave little direction in respect of the estate. I make no determination as to the presence or absence of testamentary capacity at the time this will was executed, but I have concluded that its admission to probate would do little if any harm. [ 9 ] I direct that costs upon a solicitor and client basis, be borne by the estate of Frances Mary Anderson. J.