Adult Guardianship and Trusteeship Act
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The Adult Guardianship and Trusteeship Act is unjust legislation that disregards citizenship rights and violates the Charter of Rights and Freedoms. The proclamation of this Act opens the floodgates of the financial abuse of thousands of Alberta citizens and human rights abuses on an unprecedented scale.
The Adult Guardianship and Trusteeship Act is parallel to the Sexual Sterilization Act of 1928/72. Then, it was the academia who determined who should have their organs removed. Today it is the same academia who determines who should be stripped of rights and personhood.
Some of the more virulent legislative abuses contained within the Act, are as follows:
Section 104. The court has the ability to compel a senior to undergo a capacity assessment and permits the assessor “to enter the adult’s residence” for the assessment. The Act gives the legal right to violate the privacy and safety of your domicile. You will no longer be safe in your own home from those who would strip you of your rights. In the 90’s, the court ordered that Martha M., an 84 year old, 80 lb. senior be assessed. When the Psychologist arrived at her home, she strongly instructed him: Leave! Get off my steps! Out of my yard! And called after him that she did not need a doctor. He left. If this Act proceeds, seniors will be in contempt of court if they do not give entrance to an assessor.
Section 38(2) Police may be called to enforce the court order. This legislation is designed to disarm seniors of their right to protect themselves and their property.
Section 105 The Court may determine your competency in your absence, without an assessment, no matter where you may be, even if you are out of country. This happened in 2008.
A lawyer, whom we allege did not have standing at a court Hearing, stated to the court that the referred to senior was “over the threshold” (incompetent) though he had never met her. Thus, the police apprehended the senior from her home (where she was functioning and not a cost to taxpayers) and hidden at the Royal Alex. Hospital by declaring her a “confidential patient”.
Section 26(1) Any interested “person” can apply for guardianship in respect of any resident of Alberta. No senior citizen in Alberta can safely assume that they will be able to enjoy their retirement and the fruits of their labours in peace and dignity.
Section 74(2) The Act allows ex parte Applications by the Public Guardian (they do not have to notify you of the Court Application).
It must be clearly understood, that to be declared incompetent, a senior is stripped of rights. Rights such as access to monies/bank account, birth certificate, identification papers/ whom to associate with, key to own house, may be denied a phone, mail (Christmas cards), phone calls, right to financial statements, determining where to live, self-determination, and personhood. The guardian determines if you have a non-resuscitation order, which means that in nursing home, when very ill, you will probably not be sent to hospital for treatment. The guardian/agent may restrict or ban friends and neighbours from visiting. Studies indicate that isolating a senior often provokes depression and Alzheimer disease.
Section 17. You may opt out of a co-decision Order, BUT the “withdrawal” must be filed at the court, & the Office of Public Guardian takes over. Once in the system, you are in. There is no opting out.
Section 26(5) If it is concluded that it is in your best interests not be notified, you won’t know that you have been placed under Guardianship. The same senior Martha M. had not been informed/served that she had been placed under guardianship. She went to her bank as she had done for decades in order to withdraw money to pay her monthly bills. The bank clerk informed her that she could not give her any of her money. She fainted.
Denying seniors their own money is bullying of the worst kind.
Section 40(1) A senior may apply to the courts for a review of any Order. This is an empty remedy! There is no guarantee of right to counsel. The senior who has been declared incompetent has no access to money, how can he/she retain a lawyer to go to court? Furthermore, the agent/guardian may deliberately deny a lawyer for the senior. In one matter, we helped a senior to attend at a lawyer’s office. The son called the police & the police verbally chastised the lawyer. The son and his siblings actively denied their multimillionaire father access to legal counsel. In the same matter, an RN, ‘unceremoniously’ removed a well-known lawyer from the premises.
Thieves, murderers, rapists are assured legal representation as enshrined in the Constitution of Canada, however the Adult Guardianship and Trusteeship Act does not afford such legislative protection.
Section 113(2) The Court may limit access, or close court hearings to the public, or media and impose secrecy. Courts are to be open and TRANSPARENT. The government is already denying court transcripts to advocates and the public.
Section 63. Under trusteeship, you will not be allowed to see how your hard earned money is being spent (or stolen). Only the Court may examine your financial records.
Section 67(1) With a court Order, the Trustee can disregard your last wishes, will and testament and liquidate property that has been specifically named & bequeathed in your will. This has been happening prior to enactment of the Act.
Upon Application to the Wetaskiwin court by Public Trust Officer, Cindy Lang, Justice of Calgary ruled that a name be removed from the title of a farm property, owned in joint tenancy by a senior. Neither of the persons whose name was on the title were served /notified in regard to the Public Trustee’s Application of April 17, 2007. The property has since been sold, the wishes of the senior disregarded.
Sections 87, 88. 89. Legislation allows a physician to select a specific decision maker who is given absolute power, parallel to a guardian.
D. C. was an independent Canadian citizen, who loved her Bonnie Doon home, paid her taxes, planted a large garden & and was not costing taxpayers any money. After a foot injury, she entered UofA Hospital & never allowed to return home. While there, a psychiatrist gave her a capacity test. D.C. speaks Ukrainian, German & Russian but is illiterate in English & her spoken English is colloquial & simple. She didn’t even understand why she was being questioned.
No interpreter was present for any assessment. To date, 7 psychiatrists have visited her. All, more than once or even twice, all making multiple charges to AB. Health. Some of her family members alleged she was starving, not capable of self care. A 3 ton dumpster, ordered by a daughter’s family, was placed in D.C.’s backyard and filled to overflow. Contents of which have been photographed and show jars of food that D.C.had preserved. Little 80 lb. D.C. has been detained for 8 mos., now on an Alzheimer ward, never allowed outside, recreation or attend Mass which is held in the same building.
Section 75 Section 76(2) Section 82 The Act allegedly provides appeal mechanisms, however in practice we have found that this complaint mechanism appears to be parallel to the Protection For Persons in Care Act.
The complaints officer appointed by the Minister, determines whether a complaint goes forward. Documented human rights abuses, such as seniors being unlawfully apprehended, unlawfully detained in total lockup, denied visitors, their rights totally abrogated, have been brought forward to Complaints Officer. Invariably remedies do not occur.
The Adult Guardianship and Trusteeship Act gives extraordinary, draconian powers to the Office of the Public Guardian, the Office of the Public Trustee and the courts.
Noted on our website are serious concerns about the behavior of the Office of the Public Guardian and Public Trustee and the failure by Ministers of the Crown to exact accountability from these, their employees. Note “DECEPTIVE GOVERNMENT PUBLICATION” as noted on our website, Understanding Personal Directives. Despite lengthy written complaints to government, we continue to find copies of this untruthful document available at the Calgary & Edmonton Court House library area. The Legal Resource Center also publishes this misinformation in a Publication titled “Making a Personal Directive”.
Though we accept that there are numbers of seniors who need protection nevertheless we submit that The Adult Guardianship and Trusteeship Act, the Personal Directives Act, the Powers of Attorney Act and the Mental Health Act give unlimited, legislated power to control seniors and their wealth. After all, nobody appears to be locking up the homeless or inner city seniors who may be living in appalling circumstances.
In practice, this legislation grants absolute power to agents, decision makers, guardians and trustees. There is no onus of duty of care on any of these to act in the dependant adult’s best interests. These legal appointees are virtually untouchable. Power corrupts. Absolute power corrupts absolutely.
In Alberta, the rights and final wishes of the maker of a Personal Directive or Power of Attorney, are not protected by legislation. THEY CAN BE EASILY OVERTURNED BY THE COURTS.
There are no standardized guidelines/protocol to regulate competency assessments. We have documented a litany of untrustworthy, unprofessional assessments / irregularities, processes where seniors have had their rights and monies unfairly or even illegally taken/seized from them.
In 2006, a multi-million dollar estate was seized, without a lawyer, without a Court Order, with a Personal Directive that had not been properly enacted. However the Banks, the Courts, all accepted the flawed process.
The victimized senior, a hard working Canadian citizen, though fully oriented to date, time and place, was detained
behind locked doors in an assisted living facility. His children actively denied him his money & right to a lawyer. They told him many times that he would never get out of there.
However In the fall of 2007, this man of indomitable spirit and courage was allowed to wander throughout the building, a work site and ultimately would walk around a nearby lake and to his former bank. One day he walked over to visit his family physician. Though, after his walks, on return to the assisted living building, Mr. PM always had to return to the locked unit, to his room over the facility’s garage. Finally in summer of 2009, almost 3 years after incarceration, he was moved out of the locked unit into a unit in the general population, where he knows everyone, greets everyone and is very well liked. Though he appears to have more freedom, he still has not been allowed his gold wrist watch, & his visitors continue to be restricted by family & courts.
It is time to for legislators to legislate rights and protection for seniors.
- Call or write your MLA. Tell them that this unjust legislation is offensive and is a human right’s violation
- Sign a petition. Petition can be downloaded from website. We will present Petition to Legislature.
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
Letter
HAND DELIVERED
April 16, 2010
Honourable Ms. M. Jablonski, Minister of Seniors
and Community Supports
Mr. Robert Bhatia BA, Deputy Minister, Seniors
and Community Supports
Dear Ms. Jablonskio, Mr. Bhatia:
Reference – Adult Guardianship and Trusteeship Act
The Adult Guardianship and Trusteeship Act is unjust legislation that disregards citizenship rights and violates the Charter of Rights and Freedoms.
- Who are the legislative specialists responsible for drafting the legislation?
- Who initiated and directed the process?
- Who established the criteria for this legislation?
It is clear that it was not the elected MLA’s. Those whom we met with did not even have name recognition of the Act.
As citizens of this province, we believe this information should be readily available to all.
We would be grateful to be in receipt of such information by the 3rd of May, 2010. Thank you.
Yours truly,
Elder Advocates of Alberta Society
cc.
Dr. Kevin Taft, MLA
Response
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Tags: Adult Guardianship and Trusteeship Act, Mary Anne Jablonski, Ron Liepert