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Report

September 9, 2008

2008 Bill 24
First Session, 27th Legislature, 57 Elizabeth II
THE LEGISLATIVE ASSEMBLY OF ALBERTA
BILL 24
ADULT GUARDIANSHIP AND TRUSTEESHIP ACT

We wish to thank you for allowing us to make this submission to your Committee concerning Bill #24, Adult Guardianship and Trusteeship Act.

We wish to begin by pointing out the sheer folly of attempting to pass legislation that flies in the face of the Canadian Charter of Rights and Freedoms. The abuse of seniors, especially senior’s rights has been a totally hidden issue. Furthermore it is difficult to believe that senior abuse and blatant rights violations are actually happening in our fair, prosperous province. After all this is Alberta, a province built on democratic principles.

We, the Elder Advocates of Alberta Society are an anomaly across this province and probably across Canada in that we accept and investigate complaints of elder mistreatment It is a stressful and labour intensive process. But through this process, much to our shock and often disbelief, we uncovered an unbelievable reality of legislative abuse, human rights violations and charter violations.

We found that in the early seventies, the Alberta Government established a legislative framework intended to deny rights to seniors and legislative protocol designed to allow the seizing of senior’s estates.

We found that age is not included under the Alberta Human Rights legislation. In elder care facilities, seniors can be harmed with impunity, because there is no viable, enforceable, protective legislation.

In Alberta, the rights and final wishes of the maker of a Personal Directive or Power of Attorney, are not protected by the legislation. The Personal Directive or Power of Attorney can be easily overturned by the court thereby disregarding and permanently voiding the wishes of the maker. There is no requirement to register enacted Personal Directives and Powers of Attorney with government. This failure allows estate theft, a hidden crime which can be carried out with impunity. Through the years we have come to personally know the anguish and human devastation resulting from the Dependent Adults Act legislation.

This Act strips vulnerable seniors of all rights, all decision making, right to any monies, bank account, estate, birth certificate, personhood. Vulnerable seniors are denied the right to a fair court hearing. In a criminal court there would be requirement for an expert witness, for verbal testimony, cross examination of witness and documents.

But in a dependent adult hearing, the surrogate court accepts a Form 1, which is a one page form letter, filled out by a physician who may or may not have assessed or even interviewed the proposed Dependent Adult. The decision, too often influenced by those with a vested interest. The surrogate court does not allow the senior, whose total rights are on the block, to address the court, to speak in his own defence. If no one opposes the Application for guardianship or trusteeship, the Application may be carried out in Judge’s Chambers without any hearing. In the court, dependent seniors are referred to as “the estat of”, as if they were already deceased, even if the person is sitting there in the court. The Judge’s Order grants absolute power to the guardian and trustee.

If the senior has owned a home/ house, the trustee changes the locks and denies the owner/dependant adult a key. When the senior may be allowed to enter the home, they are cautioned not to touch anything. They have to pay someone to supervise their visit.The house may be sold without the owner’s permission and often against the senior’s wish. Family properties, land, farm, ranches and other properties built up over a lifetime are liquidated by the Office of the Public Trustee, with disregard for the senior’s last Will & Testament. The Office of the Public Trustee administers the second largest fund in Alberta, folowing the Alberta Heritage Trust Fund. There is no onus of duty of care on the guardian or trustee to act in the dependant adult’s best interests or to spend monies on behalf of the dependent adult or ameliorate his situation. We can give appalling, documented examples of such situations.

One would assume that the intent of guardianship and trusteeship is to keep the senior safe. Why then do we have to spend hours writing letters to government in defence of vulnerable seniors, appealing for their safety? Why did we have to spend several hours with the Edmonton Police Service last week in regard to a man detained at Alberta Hospital Edmonton? This frail, elderly, wheel chair dependent man, who is being physically and chemically restrained has been drugged until he was stuporous, administered a contraindicated medication that could kill him, had an injury to his left hand, wrist and fingers, finger nil picks on his right lower arm and elbow, a gash on his forehead. His wife wishes to have the husband removed from Alberta Hospital, however the court took away her rights as Agent and appointed the Public Guardian giving full rights to the Office of the Public Guardian. The guardians and trustees are untouchable because there is no provision within legislation to hold them accountable or to discipline them except to apply to the court. Who will apply to the court, the dependent senior who now has absolutely no access to monies or lawyer? Furthermore, these legal appointees are immune from liability.

A dependant adult has no right to sue his detainers. A dependant adult is denied the right to review or even see documents/ assessments which declared him incompetent A common criminal, however, has a full right to sue, he also has the right to full disclosure of charges made against them. A senior, who may be in his 70’s or 80’s, may be kept going from one stressful assessment to another. We know of one senior, a multi-millionaire, who is now defenceless, in 15 months was assessed 12 times by physicians, psychologists, geriatric specialists, etc. This could be considered an industry or maybe a feeding frenzy. Thesenior is desperately hopeful that his rights will be restored, when the matter is heard again and again, before the court. The estate is withheld, literally stripping the senior naked, rather than allowing the senior to go forward in his/her life to enjoy the fruits of his/her lifelong labours. Who pays? The senior/ dependant adult pays. In surrogate court matters, the court orders that all lawyers, physicians and the court get paid by the senior’s estate. His hard earned money pays for his keep, for court applications and for all the ongoing assessments which may each cost in the area of $5,000. His carefully earned money pays for the lawyer who is retained to deny him his rights.

Often these dependent adult matters may continue on for years, until the estate is exhausted. We are aware of one such estate matter which has been before the Edmonton Surrogate Court since 1996, which will be heard again this week. Finally, all this is not known to the trusting seniors. How could they know? Most would never believe it until it affects them. Then they are helpless to do anything about it.

Legislators:

The proposed legislation has forgotten that the actual ownership of the wealth of a “dependent senior” actually belongs to the senior That the first priority should be for the well being of the senior himself or herself as the case may be.

We urge you to allow your conscience to guide you, to strongly direct the legislative specialists to go back to the drawing board in order to craft compassionate, equitable legislation. Legislation, that safeguards the well being, the human rights and charter rights of Alberta’s senior citizens.

Press Conference

Monday, November 17, 2008 11:00 AM
Old Timers Cabin
9430 Scona Road, Edmonton, AB

Draconian legislation infringing on privacy rights and the right to safety and security of person.
The facts relating to this legislation will be fully discussed at the Press Conference by Mr. Allan Garber of Parlee McLaws LLP.

Letter

Hand Delivered

December 8, 2008

The Honourable Ms. Alison Redford, QC
Minister of Justice and Attorney General

The Honourable Mr. Ron Liepert,
Minister of Health & Wellness

The Honourable Ms. Mary Anne Jablonski,
Minister of Seniors and Community Support Services

CAPACITY ASSESSMENT TRANSCRIPTION

We are calling on our Government to legislate that all capacity assessments be recorded and transcribed. The proposed legislation should require that, a Certified Realtime Reporter must be present, to transcribe each and every assessment.

When completed, the Reporter should make the certified transcription directly available to the assessed senior, without delay. It is no longer acceptable, that seniors are being stripped of all rights in an unmonitored, secret process.

We further submit, that the trite, meaningless, commonly used phrase, “poor insight and judgment” should no longer be recognized, as a stated reason for incapacity.

We must safeguard senior Alberta citizens from further predation.

Thank you.

We shall be awaiting a response and be grateful to be in receipt of your response by the 20th of December, 2008.

Elder Advocates Of Alberta Society

Responses

Schedule Form I – Assessing Competency

We are calling for a Public Inquiry in regard to the way people, primarily seniors, are being assessed for competency.

We are challenging a severely flawed process that has existed for over 50 yrs.

A physician, has a powerful quasi-judicial position in society by virtue of the reliance on his assessments by the judicial system, in that his assessment can lead to the detaining of lawful citizens behind locked doors and removal of property and human rights.

The current standards required for a physician in the performance of his assessment are not well defined. We believe that if the judiciary is to rely on a physician’s assessment, specific standards and criteria must be developed for the exercise and documentation of a physician’s assessment. These should include cross examination of the physician & documentation/affidavit testimony which outlines the process which was followed as well as practical avenues for appeal and review of that assessment.

THE JUDICIARY, WITH FULL KNOWLEDGE, ARE RELYING ON AN OPINION THAT IS NOT WELL SUPPORTED. Seniors are being abused through the process that declares them incompetent to look after their finances and personal decisions.

We are calling for:

• hearings across the province of persons who have been victimized by a process that has no safe, measurable guidelines to ensure a fair, ethical assessment. Hearings to include those Alberta citizens who are detained behind locked doors who wish to be heard. The public needs to understand the magnitude of this issue.
• establish legislated criteria & standards to govern the assessment protocol, that recognizes constitutional rights and the Charter of Rights and Freedoms
• establish practical avenues of accessible, appeal protocol
• establish penalties for those who are in breach of legislation.
• a definitive time line in regard to these undertakings