Godsman v Godsman, 2024 ABKB 11

Court of King’s Bench of Alberta Citation: Godsman v Godsman, 2024 ABKB 11 Date: 20240105 Docket: 2101 13167 Registry: Lethbridge Between: LEE PAUL GODSMAN and TIMOTHY JOHN GODSMAN APPLICANT - and – JEANETTE DAWN GODSMAN RESPONDENT _______________________________________________________ Memorandum of Decision Of the Honourable Justice D.V. Hartigan _______________________________________________________ INTRODUCTION [ 1 ] This matter involves an Application for

Summary Judgment seeking to dismiss the Respondent’s Application to Determine the Validity of an immediate enduring power of attorney and personal directive, executed by Marjory Elizabeth Godsman (“Ms. Godsman”). [ 2 ] At its core, this dispute revolves around two competing sets of documents. The Respondent, Jeanette Godsman (“Jeanette”),

is Ms. Godsman’s Attorney pursuant to an immediate Enduring Power of Attorney and Ms. Godsman’s Agent pursuant to a Personal Directive. Both the Enduring Power of Attorney and the Personal Directive were executed on December 3, 2020 (collectively, the “2020 Documents”). [ 3 ] The Applicants, Lee Paul Godsman (“Lee”) and Timothy John Godsman (“Tim”) are Ms. Godsman’s joint Attorneys pursuant to an Enduring Power of Attorney and joint Agents pursuant to a Personal Directive, both documents having been executed on July 7, 2021 (collectively, the “2021 Documents”). [ 4 ] The Respondent, Jeanette, argues that Ms.

Godsman lacked capacity to execute the 2021 Documents, and that she should therefore remain Attorney and Agent for Ms. Godsman per the 2020 Documents. The Applicants, Lee and Tim, argue that the 2021 Documents are validly executed and therefore revoke and replace the 2020 Documents. The Applicants further argue that the validity of the 2021 Documents can be determined by way of

summary judgment. ISSUES [ 5 ] There are, therefore, two issues for me to determine: 1. Can the issue of Ms. Godsman’s capacity at the time of the execution of the 2021 Documents be fairly and justly determined by way of

summary judgment; and 2. If so, did Ms. Godsman have the requisite capacity to execute the 2021 Documents? PRELIMINARY ISSUE: THE APPLICANTS’ STANDING [ 6 ] While not extensively argued (in fact, only briefly touched upon in her brief and in oral argument), the Respondent questions the Applicants’ standing in these proceedings.

Section 11 of the Powers of Attorney Act , RSA 2000, c P-20 states: 11(1) Any interested person may apply to the Court for an order terminating the enduring power of attorney. [ 7 ]

Section 25 of the Personal Directives Act, RSA 2000, c P-6 states: 25 A person who makes a personal directive, the Public Guardian or any other interested person may apply to the Court for any one or more orders referred to in

section 27. [ 8 ] Section 27(1)(

b) states: 27(1) The Court may, on hearing an application under

section 25 , do any one or more of the following: ... (

b) determine the validity of a personal directive or any part of it[.] [ 9 ] “Interested person” is not defined in either Act. [ 10 ] Determining whether someone is an “interested person” within the meaning of the legislation requires an examination of the relationship between the person and the donor and the nature of the interested person’s interest ( Taubner Estate (Re) , 2010 ABQB 60 paras 206-219 ; see also Giles (Re) , 2023 ABCA 242 ). In this case, the Applicants are Ms. Godsman’s sons.

They are also the presumptive attorneys and agents pursuant to the 2021 Documents, should those documents be found to be valid. I therefore find they are “interested persons” within the meaning of both Acts and therefore have standing in this dispute.

SUMMARY JUDGMENT [ 11 ] The availability of

summary judgment is governed by Rules 7.2 and 7.3 of the Alberta Rules of Court : 7.2 On application, the Court may at any time in an action give judgment or an order to which an applicant is entitled when (

a) admissions of fact are made in a pleading or otherwise, or (

b) the only evidence consists of records and an affidavit is sufficient to prove the authenticity of the records in which the evidence is contained. 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following: (

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require. [ 12 ] In Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 at para 20 [ Weir-Jones ], the Court of Appeal stated: Since Hryniak v Mauldin [2014 SCC 7 , [2014] 1 SCR 87] the presumption that most disputes could or should “go to trial” is seen as being unrealistic. The parties’ resources often do not allow a trial on every issue. Indeed, our civil justice system would be deficient if it could not resolve most claims without a trial.

Trials are too expensive for many litigants, and disproportionate for many disputes. Seeing a trial as the default procedure is therefore not realistic; the expense of trial may cause some plaintiffs to “simply give up on justice”: Hryniak v. Mauldin at para. 25 . We have to strive for a “fair and just process” recognizing that “alternative models of adjudication are no less legitimate than the conventional trial”: Hryniak v. Mauldin at para. 27 . [ 13 ] In Gordon Estate (Re) , 2023 ABKB 132 at para 8 [ Gordon ], Justice Armstrong set out further advantages to the

summary judgment procedure: While the expense of a full trial is, in many cases, disproportionate to the magnitude of the dispute, cost is not the only factor underpinning the importance of

summary judgment processes. Avoiding the delay associated with a full trial is also a key advantage of a

summary judgment application: See Hannam v Medicine Hat School District No. 76 , 2020 ABCA 343 at para 46 . Aside from the financial costs associated with delay, there is also an emotional cost that may be mitigated if a claim can be resolved expeditiously without the need for a full adversarial trial. This may be especially relevant in estate cases or other types of family disputes. [ 14 ] The Court of Appeal set out the applicable considerations for a

summary judgment application in Weir-Jones , at paragraph 47 : The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities, or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. [ 15 ] The evidentiary record before me in this matter is considerable. It includes affidavits from the Parties, a friend of Ms. Godsman, Ms. Du Toit, and the lawyers who assisted in the preparation and execution of the 2021 Documents. All of the people who filed affidavits were questioned prior to this Application, and those transcripts are before the Court. Significant medical information regarding Ms.

Godsman during the relevant period has also been produced. The Applicants suggest the record is sufficient for me to determine Ms. Godsman’s capacity at the time the 2021 Documents were executed. [ 16 ] The Respondent argues that this matter should proceed to a four-day hearing with viva voce evidence, which is currently scheduled for March of 2024. [ 17 ] The Respondent contends that, as the credibility of one of the Applicants, Lee, is at issue, that his Affidavit evidence should be viewed with caution.

Although not expressly stated, the suggestion seems to be that he should be subject to cross-examination in a hearing so that a trier of fact may more properly assess his credibility. They suggest that Lee was actively undermining his mother’s relationship with Jeanette by negatively influencing Ms. Godsman’s view of Jeanette and her actions taken as agent and attorney. [ 18 ] I do not find this argument in favour of an oral hearing compelling. The simple presence of conflicting affidavit evidence does not preclude a

summary decision: In Hryniak , the Supreme Court determined that some conflict in affidavit evidence of opposing parties in an application for

summary judgment does not mandate setting the matter for trial in every situation. The key is whether the necessary findings of fact can be made on the record. The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences

are strongly supported by the facts: Guarantee Co of North America v Gordon Capital Corp, (SCC), [1999] 3 SCR423 at para 30; Lameman at para 11. It may be that the conflicts do not arise on essential facts. It may be that analysis shows no factualconflict exists, but only a conflict of the litigants' separate opinions. It may be that issues can be resolved on the basis of those portions ofthe affidavits which are not in dispute.

It may be that one party relies on several affidavits containing internally conflicting evidence,including some evidence which agrees with or supports the evidence led by the opposite party, amounting to admissions againstinterest: Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101at paras 79-81, leave to appeal denied, [2015] SCCANo 184.

The key is whether it is essential to the determination of the issues in dispute that the court see the witnesses in order to assesstheir credibility and reliability. (From Estate, 2019 ABQB 998 at para 110) [19] While there may be evidence in conflict with Lee’s affidavit which raises concerns regarding his credibility, I do not find hisevidence necessary or even particularly helpful in determining the ultimate issue before me: that is, whether Ms. Godsman had therequisite capacity to execute the 2021 Documents.

Furthermore, whatever influence he may have had on his mother is not material to theissue of her capacity, as counsel expressly stated they are not alleging undue influence on Lee’s part. [20] The Respondent further suggests that the viva voce hearing should proceed as “[r]elevant additional witnesses could included[sic] Dr. Todd, Dr. McKenna, Dr. Silvius, Dr. Borgstrom and Sydney Crocker (a senior staff member at [Ms.

Godsman’s residential carefacility]).” (Respondent’s Brief, para 75) [21] The Applicants contend that, absent affidavits from those potential witnesses, the Respondent is engaging in a form of “trialby ambush”, as the evidence they may provide is unknown. The Respondent counters that the Oral Hearing Order governing the Marchhearing provided for the ability of the Parties to call witnesses at the hearing without the requirement that these witnesses have firstsworn an affidavit. [22] Whether such witnesses could have been called at the hearing is not something I have to determine.

Rather, the questionbefore me is whether the Respondent has complied with her obligation to put her “best foot forward” in the

summary judgmentapplication. In Canada (Attorney General) v Lameman, 2008 SCC 14 , [2008] 1 SCR 372 at para 19, the Supreme Courtstated: A

summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter is allowed toproceed. To accept that proposition would be to undermine the rationale of the rule. A motion for

summary judgment must be judgedon the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in thefuture. [23] Whatever the evidence of the above potential witnesses may have been, as the Court pointed out in Gordon, capacity is not amedical diagnosis, but a legal construct. Whether or not Ms. Godsman had the requisite capacity to execute the 2021 documents is afinding of fact that the Court must make on the available evidence (Gordon, at para 14). I am therefore satisfied that the record beforeme in this

summary judgment application is sufficient to enable a fair and just determination of the issues. It is “sufficient to allow forthe necessary findings of fact and application of the law required to determine this matter summarily.” (Gordon, at para 15) Did Ms. Godsman have the requisite capacity when sheexecuted the 2021 Documents? Background [24] Before addressing the issue of Ms. Godsman’s capacity at the time of the execution of the 2021 Documents, a brief

summaryof the events leading up to the creation and execution of those documents is in order. [25] Ms. Godsman is 92 years old. She and her husband emigrated to Canada from the United Kingdom in 1988. Their two adultsons, the Applicants Lee and Tim, continue to reside in the United Kingdom. [26] Jeanette’s husband is Ms. Godsman’s deceased husband’s nephew. Jeanette and her husband lived in Calgary and spentconsiderable time with Ms. Godsman and her husband. After Ms. Godsman’s husband’s death, Jeanette and her husband continued to seeMs. Godsman, and assisted her with financial and other matters.

Jeanette and Ms. Godsman were clearly very close until their relationshipbroke down over the matters at issue here. [27] Ms. Godsman’s husband died in 2006. Ms. Godsman continued to live independently at home, with the assistance of Jeanetteand other friends. After a series of falls in 2020, Jeanette arranged to take Ms. Godsman to a lawyer. Ms. Godsman instructed the lawyerto create the 2020 Documents, which were duly executed. The appointment of Jeanette as Agent and Attorney was both logical andpractical, given the closeness of their relationship, the help Jeanette had provided Ms.

Godsman in the past, and the fact she was “on theground” in Calgary while Ms. Godsman’s sons were in the U.K. [28] In February of 2021, Ms. Godsman fell in her home. Jeanette took Ms. Godsman to the hospital, after she was reluctant to goto the hospital with attending paramedics. It was determined that Ms. Godsman had sustained a fracture in her lower spine and needed tobe admitted to hospital. [29] The medical caregivers had some concerns about Ms. Godsman’s capacity.

These concerns were largely due to Ms.Godsman’s apparent lack of understanding of the seriousness of her condition, and her express desire to be discharged from the hospitaland return home to live independently. Two physicians determined she lacked capacity with respect to decisions surrounding health careand accommodation and completed Declarations of Incapacity with respect to those two areas. They did not declare her incapable withrespect to legal, financial or other matters.

[30] After exploring a number of residential options, including whether Ms. Godsman could return to her home, Jeanette, as Agentand Attorney, in consultation with medical professionals, arranged for Ms. Godsman to live at the Scenic Grande residential facility,where she would receive the full-time care and support the professionals advised she required. [31] After Ms. Godsman’s move to the Scenic Grande, differences arose between Jeanette and Tim and Lee over decision makingfor Ms. Godsman. Ms.

Godsman expressed some dissatisfaction with living at the Scenic Grande to her sons and Jeanette, as well as toher friend, Leilani Du Toit. [32] Sadly, the relationship between Ms. Godsman and Jeanette deteriorated to the point where Ms. Godsman would notcommunicate with Jeanette. She indicated she did not want Jeanette to handle her affairs any longer and wanted her sons to do so togetherinstead. [33] In June of 2021, Lee contacted Robert Rakochey, a lawyer in Calgary, whom Ms. Godsman and her husband had knownthrough the Rotary Club since 1991. Eventually, Mr.

Rakochey arranged for a partner at his firm, Lisa Statt Foy, to meet with Ms.Godsman. Both Mr. Rakochey and Ms. Statt Foy were of the view Ms. Godsman had the capacity to create and execute a new EnduringPower of Attorney and Personal Directive. They therefore prepared and witnessed Ms. Godsman execute the 2021 Documents. [34] The Respondent contends Ms. Godsman lacked the requisite capacity to execute the 2021 Documents. THE LAW OF CAPACITY [35] The formal requirements for an enduring power of attorney to be found valid are found in section 2(1) of the Powers ofAttorney Act.

The formal requirements for a personal directive to be found to be valid are found in

section 5 of the Personal DirectivesAct. That these formal requirements were met with respect to the 2021 Documents is not in issue. [36] Compliance with the formal provisions in both cases gives rise to a presumption of capacity which must be rebutted by theRespondent. [37] What is at issue is whether Ms. Godsman had the capacity required by law to execute the documents. [38] The level of capacity to execute a power of attorney is not defined in legislation. The test established by

section 3 of thePowers of Attorney Act, is whether, on the day the enduring power of attorney was executed, the donor understood the nature and effectof the document. [39] In Midtal v. Pohl, 2014 ABQB 646 [Midtal], the Court interpreted the “nature and effect test” as requiring the donor topossess four key facets of knowledge and awareness, which were formulated by Lord Hoffman in Re K; Re F [1988] 1 All ER 358(ChD): 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. (Midtal, at para 92) [40] As Justice Devlin stated in Martin v. Hunter, 2021 ABQB 153 [Martin], “[to] give meaning to the four basic lines of inquirymandated by the “nature and effect” test requires some degree of inquiry into the donor’s overall cognition and contextualunderstanding.” He went on to state: [178] The purpose of the Powers of Attorney Act is to allow individuals to have control over how their affairs will be conducted in theevent of their incapacity, to the extent reasonable.

As Benotto J wrote in Calvert (Litigation Guardian of) v Calvert, (ON SC), 32 OR (3d) 281, at paras 52 and 57: A person's right of self-determination is an important philosophical and legal principle…. The courts are slow to take away a person'sright to decide. This is reflected in the low threshold the courts have set for the determination of capacity….

A person who suffers froma cognitive impairment is competent as long as the act in question takes place during a lucid interval. [179] Consistent with this objective, the threshold for capacity to execute a power of attorney is, and must be, relatively lowcompared to other forms of capacity.

Nevertheless, the point of recognizing an individual’s capacity to control their own affairs is to giveeffect to their human dignity, which presupposes that their stated wishes constitute a meaningful expression of their own will, as opposedto a transient thought that has come about as a result of delusion, influence, or other demented operation of the mind.

It serves littlepurpose, and accords poorly with the underlying rationales of empowering human dignity, to find capacity in an individual whosesituational understanding and desires are unmoored from a stable association with reality and could change from moment to moment forreasons unrelated to their own wilful cognition. [180] The requirement that a donor understands the “nature and effect” of a power of attorney is not satisfied by the bare, abstractincantation of specified words. Rather, the donor must understand the effect of a power of attorney on them. In my view, this requires

their conception of that effect to be tested against their circumstantial awareness. [181] This need for contextual inquiry is apparent in the language of the nature and effects test itself. The first question is whether the donor understands that the attorney would be able to assume complete authority over the donor’s affairs. This requirement imports a need to understand the nature of one’s affairs, at least in general terms.

This, in turn, requires a basic situational understanding of one’s living circumstances, health and mental well-being, and ongoing obligations. [182] Similarly, the second, third and fourth questions cannot be answered meaningfully unless the donor understands who the proposed attorney is and their place, roughly, in the donor’s life. Finally, the risks of granting such a power – i.e., the effect of the document – cannot be appreciated without a concept of risk and future consequences.

These abstractions, in turn, cannot be comprehended without some appreciation of where the donor is within the flow of time and the course of their own lives. [183] While none of these factors necessarily obviates capacity, they are relevant to whether what the donor is saying when instructing a solicitor is a bona fide expression of their will or an amalgam, often cleverly and deceptively presented, of past memories, delusional beliefs, and recently heard suggestions.

The more it is the latter, the more the Court will view the donor’s capacity with suspicion. [184] Along the same lines, while the reason for a change to one’s power of attorney is not an element of the nature and effects test, it is nonetheless important and relevant because it provides visibility into the donor’s cognitive processes and permits inferences to be drawn about the donor’s understanding of the nature and effect of the instrument. [ 41 ] The Respondent raises a number of concerns regarding Ms. Godsman’s capacity at various times.

There was, of course, the declaration of incapacity by two physicians prior to her discharge from hospital after her fall. That incapacity was in relation to medical treatment and accommodation. Further, Ms. Godsman appears to have lacked understanding of why she had been hospitalized and what she was taking medication for when assessed by Dr. Silvius 12 days before the execution of the 2021 Documents. She also did not appear to have insight into her risk of falling in March of 2021. [ 42 ] The issue, of course, is not Ms.

Godsman’s capacity at various times preceding the execution of the 2021 Documents, but at the time those documents were executed. The evidence of Ms. Godsman’s capacity at the time of execution comes from the two lawyers involved, Mr. Rakochey and Ms. Statt Foy. [ 43 ] Capacity is a legal test, not a medical diagnosis. As Justice Devlin stated in Martin , “[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.” ( Martin at para 138 ).

Medical evidence does not carry more weight that the evidence of a lawyer or layperson who was present when a document was executed. ( Guardian Law Group v. LS , 2021 ABQB 591 ) [ 44 ] The Respondent identifies a number of concerns with the factual background with which the lawyers were operating at the time of the creation and execution of the 2021 Documents. She submits that Mr. Rakochey and Ms. Statt Foy were operating under assumptions which were “underinformed at best, and inaccurate at worst” (Respondent’s brief, para 100). Counsel either were not told or could not remember being told the following: 1.

That Ms. Godsman had been hospitalized in early 2021; 2. That Ms. Godsman’s personal directive had been activated by two physicians in March, 2021; 3. That Ms. Godsman had been declared to lack capacity with respect to accommodation and health care; 4. That Ms. Godsman had been diagnosed with a major neurocognitive disorder, likely a mixed-type dementia. [ 45 ] Mr. Rakochey and Ms. Statt Foy provided affidavit evidence with respect to their dealings with Ms. Godsman and their assessments of her capacity. I will now review their evidence. [ 46 ] Mr. Rakochey states that he has known Ms.

Godsman since 1991, when he and Ms. Godsman’s husband were members of the Rotary Club of Calgary. Over the course of approximately 10 years, he would see the Godsmans at meetings and social events. [ 47 ] In June of 2021, he spoke with Ms. Godsman on the telephone. Ms. Statt Foy was on the call as well. The purpose of the call was because Ms. Godsman wanted to have a new enduring power of attorney and personal directive drafted. Ms. Godsman advised that she did not want Jeanette to be named in her new power of attorney or directive. As Mr.

Rackochey did not practice in the area of wills and estates, he advised Ms. Godsman she was in good hands with Ms. Statt Foy. [ 48 ] On July 7, 2021, he and Ms. Statt Foy attended at the Scenic Grande home to meet with Ms. Godsman. He recalls the meeting lasted around an hour. Ms. Godsman expressed dissatisfaction with Jeanette as her Attorney and Agent. In particular, she said that Jeanette was not listening to her; that she did not like living at Scenic Grande, and that Jeanette was not taking steps to help her.

She stated she was happy her sons were going to be involved in decision making for her because she felt her sons would consult with her about decisions and ensure she was happy where she was living. [ 49 ] Mr. Rakochey stated: “I was satisfied after our meeting that she was the same Marjorie as I remembered. Marjorie was able to give informed instructions to Ms.

Stott-Foy [sic] and I believe Marjorie understood the documents she was signing.” He further stated, “Based on my discussions with, and observations of, Marjorie during our meeting and telephone call, I believe Marjorie understood the nature and effect of making an enduring power of attorney as well as the nature and effect of making a personal directive...Based on my discussions with, and observations of Marjorie...(

a) I believe Marjorie possessed the mental capacity to execute the enduring power of attorney and personal directive on July 7, 2021; (

b) I believer Marjorie understood the nature and effect of an enduring power of attorney and personal

directive; and (

c) I do not believe Marjorie was being influenced, unduly or otherwise, or under duress on July 7, 2021, by any person regarding the enduring power of attorney and personal directive.” (Rakochey Affidavit, paras. 21-23) [ 50 ] He further stated that he believed Ms. Godsman did not want Jeanette to be her decision maker and that she intended for her sons to act as her attorney and agent. [ 51 ] In her extensive and thorough affidavit, Ms. Statt Foy testified to her significant experience in the areas of estate planning. She stated that in June of 2021, Mr.

Rakochey, a partner at her firm, asked her to assist in drafting personal planning documents for Ms. Godsman. From June 23 rd to July 8 th , 2021, Ms. Statt Foy had 4 telephone calls, 1 video conference and 1 in-person meeting with Ms. Godsman. By her estimate, Ms. Statt Foy spent between 3 hours 15 minutes and 3 hours 40 minutes in conversation with her client. [ 52 ] While Ms. Godsman’s son, Lee, was present for many of the discussions, Ms. Statt Foy was very clear that Ms. Godsman was her client, and that she would only take instructions from her. She also advised Lee that she could only act if Ms.

Godsman could give her clear instructions. Ms. Statt Foy also spoke privately with Ms. Godsman. [ 53 ] Ms. Godsman advised Ms. Statt Foy that she wanted to change the 2020 Documents because she was dissatisfied with Jeanette as her Agent/Attorney. She also advised Ms. Statt Foy that she was distrustful and somewhat fearful of Jeanette. She advised she did not feel Jeanette was involving her in decisions; rather, she was making decisions unilaterally. She stated she was unhappy living at the Scenic Grande.

She clearly indicated she wanted her sons to replace Jeanette and to work together jointly. [ 54 ] After the second call on June 30, 2021, Ms. Statt Foy had the following observation: “Throughout the June 30, 2021, telephone call with Marjorie, I had no concerns about Marjorie’s ability to provide me with instructions about an enduring power of attorney or a personal directive.

I was also satisfied with the reasons why Marjorie wanted to execute a new personal directive and enduring power of attorney based on her feelings about Jeanette, and her wishes for both of her sons to assist her.” (Statt Foy Affidavit, para 27) [ 55 ] After a July 5 th telephone call with Ms. Godsman, Ms. Statt Foy stated in her affidavit, “Throughout the telephone call, I had no concerns regarding Marjorie’s ability to provide me with instructions regarding the enduring power of attorney or personal directive.

I believe Marjorie’s reasons for wanting to remove Jeanette were sound and Marjorie’s desire for both of her sons to make decisions for her and help her never waivered.” (Statt Foy Affidavit, para 43) Further on in the affidavit she states: “Marjorie’s desire for her sons to act as joint attorneys and joint agents and for Jeanette to be removed as her attorney and agent was constant and unwavering throughout my conversations with Marjorie on June 23, 2021, June 30, 2021, and July 5, 2021 – and on July 7, 2021, at the time of attendance at Marjorie’s residence to witness her formally sign the 2021 EPA and 2021 PD.” (Statt Foy Affidavit, para 52) [ 56 ] In

summary, Ms. Statt Foy concluded that she believed Ms. Godsman possessed the mental capacity to execute the 2021 Documents; that she had the capacity to provide instructions regarding the 2021 Documents; that she understood the nature and effect of each of the 2021 Documents; and that she did not believe Ms. Godsman was being influenced, unduly or otherwise, or under duress by any person regarding the 2021 Documents. (Statt Foy Affidavit, para 62) [ 57 ] Clearly, Ms. Statt Foy was very thorough in assessing her client’s capacity and in taking her instructions. The fact that she may not have known Ms.

Godsman’s full medical history or that there had been a previous declaration of lack of capacity would not, in my view, have changed her conclusions as to Ms. Godsman’s capacity nor altered her approach in her dealings with Ms. Godsman. It is difficult to imagine a more thorough and professional approach to taking instructions in this sort of matter. Ms. Statt Foy was clearly aware that she was dealing with a nonagenarian client living in an assisted living setting and would no doubt have been alive to the possibility such a person may have cognitive issues. I accept Ms. Statt Foys evidence (and Mr.

Rakochey’s as well). [ 58 ] Ms. Godsman’s contemporaneous desire to replace Jeanette with her sons is corroborated by the Affidavit of Leilani du Toit, Ms. Godsman’s friend. Ms. Du Toit describes Ms. Godsman as firm in her desire to have her sons involved in her decision making. She also describes her friend as lucid and relatively independent. [ 59 ] From Ms. Statt Foy’s evidence, it is clear Ms. Godsman possessed the four facets of knowledge and awareness in Midtal . Furthermore, undertaking the contextual inquiry in Martin , it is clear Ms.

Godsman understood the effect of the change in agents and attorneys on her and her situation, and that she was aware of her circumstances and affairs. It is also clear from Ms. Statt Foy’s evidence, particularly the fact that over several meetings Ms. Godsman’s position and instructions remained unchanged, that Ms.

Godsman’s “situational understanding and desires” were not “unmoored from a stable association with reality,” nor that they would “change from moment to moment for reasons unrelated to [her] own wilful cognition.” ( Martin , at para 179 ) [ 60 ] In Martin , the Court also stated that the reason for changing one’s power of attorney is important and relevant “because it provides visibility into the donor’s cognitive processes and permits inferences to be drawn about the donor’s understanding of the nature and effect of the instrument.” Ms. Godsman expressed dissatisfaction with Jeanette as her Agent and Attorney.

She was unhappy with the residence Jeanette had arranged. She stated she wanted her adult sons to be her decision makers, rather than Jeanette. [ 61 ] These expressed reasons are all rational and consistent with Ms. Godsman’s situation and understanding. The Respondent argues that Ms. Godsman was incorrect in her assessment of Jeanette, insofar as Jeanette was in fact attempting to address Ms. Godsman’s concerns with the Scenic Grande. The fact Ms.

Godsman may have underestimated Jeanette’s efforts on her behalf does not diminish or detract from her capacity to change her Enduring Power of Attorney and Personal Directive. [ 62 ] I am therefore satisfied on a balance of probabilities that Ms. Godsman had the requisite capacity to execute the 2021 Documents at the time of their execution. CONCLUSION

[ 63 ] Given my finding of fact above with respect to Ms. Godsman’s capacity, I dismiss the Validity Application and declare that the 2021 Documents are valid and in full force and effect. [ 64 ] This matter involves the very sad breakdown of the relationship between the Respondent, Jeanette, and Ms. Godsman. Jeanette selflessly attempted to act in what she felt was Ms. Godsman’s best interests. Furthermore, she was honestly concerned that Ms. Godsman lacked the capacity to change her agent and attorney in July of 2021. She quite rightly sought the advice and direction of the Court to decide the matter. Ms.

Godsman’s best interests, in particular her health and safety, were always at the forefront of Jeanette’s decisions and actions. [ 65 ] In many ways, it could well be argued that Jeanette is the preferable agent and attorney for Ms. Godsman: like Ms. Godsman’s sons, she obviously cares for their mother’s well-being and, unlike Ms. Godsman’s sons, she lives in the same city and country as Ms. Godsman. But that is not the issue. A person with capacity has the right to choose who will look after her affairs, whether or not objectively her choice is the best one.

I truly hope that, now Jeanette is not responsible for Ms. Godsman’s affairs, their conflict can be put aside and their relationship mended. COSTS [ 66 ] If the parties cannot agree to costs, particularly in light of my comments in paragraph 64, they may arrange to have the matter brought before me either when I am in Calgary or via WebEx. Heard on the 3 rd of November, 2023. Dated at Lethbridge , Alberta this 5 th day of January, 2024 D.V. Hartigan J.C.K.B.A. Appearances: Brett Turnquist, Kantor LLP Counsel for Applicants Paul E. Reid and Shannon James, Carscallen LLP Counsel for Respondent