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Competency Issues

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A commentary on the process of declaring Seniors Incompetant, looking at the Dependant Adults Act, Personal Directives Act, Powers of Attorney Act, and Mental Health Act.

“What do you say to someone who hast lost everything they owned?”
-Ann Simmons

There is a blight that is afflicting many seniors across this province.

Under the guise of looking out for the senior’s safety, seniors are being declared incompetent. They are totally stripped of all rights and sometimes even detained/isolated behind locked doors, all allegedly for their safety and best interests.

This blight primarily affects moneyed seniors. Legislated power is used to control these seniors and their wealth.

The Dependant Adults Act, the Personal Directives Act, the Powers of Attorney Act and the Mental Health Act establishes the protocol. Physicians, psychologists, psychiatrists carry out the protocol and the courts are the enforcers.

This is an example of unbridled pseudo science and a government with a vicious agenda.

The dependant adult legislation is parallel to the Sexual Sterilization Act of 1928-1972. Then it was the academia who determined who should have their organs
removed. Today it is the academia who determines that seniors should be stripped of rights and personhood.

The Dependent Adult

By means of assessments or some form of testing (sometimes no testing at all) seniors can be declared to be incompetent. Common sense has no part in this process.

Following an alleged assessment, the senior may be declared a dependent adult at which time he/she is stripped of all rights. Rights such as access to monies/bank account, identification papers/birth certificate, freedom of association, mail, right to financial statements, determining where to live, self determination.

If the senior has owned a home/house and is under trusteeship, the trustee changes the locks and denies the owner/dependant adult a key. When the senior is allowed to enter their home, they are cautioned not to touch anything. They are disallowed to give away precious belongings which they wish special friends or relatives to have. They are strongly informed that they may not do so.

The house may be sold without the owner’s permission and often against the senior’s will.

Once declared incompetent, no matter how competent the senior may be, the senior ceases to possess any autonomy.

Assessing For Competency

“To be declared incompetent is a heavy and permanent sentence.”

We have found that the system which allegedly exists to act in the best interests of and protect seniors, fails to do so.

The Form I which follows the assessment, is powerful, damning and final. However in essence, it is a trivial document which contains a few, often meaningless phrases.

We have found that there are often troubling inconsistencies concerning these pseudo assessments and Form I’s.

We have documented a litany of untrustworthy, unprofessional assessments and or irregularities, processes where seniors have had their rights and monies unfairly or even illegally taken/seized from them.

We know of instances where the physician has done no testing at all prior to filling out the Form I document.

Vague, brief, scribbled unsubstantiatied, phrases are found on the Form I.

A frequently used term can be found as follows:

“Poor insight and judgement.”

What does that mean? Poor insight and judgement could apply to almost half the population.

Another vague statement written by a professional which could apply to large segments of the population.

“Unsafe Behaviors putting himself at risk” (no punctuation)

In some cases where a second assessment or subsequent assessments are made, they are based entirely on previous assessments. Hence, a damaging, illegal document may be issued which will continue to condemn the senior.

According to existing legislation, the physicians, psychologists, psychiatrists who issue these declarations, cannot be held accountable for what they have written.

Assessments are done in secret. There is no one to provide moral support, no one other than the assessor is present. To be declared incompetent is a heavy and permanent sentence and must be established beyond a reasonable doubt.

During such assessments, no one takes into account the senior’s education level, cultural background, age, ability to hear, to see reasonably well or the presence of any disabling illness.

Assessments are costly. An assessment may cost $5,000.00 or more. The estate pays.

Prior to any Form I being completed, there is often considerable input from family or those with a vested interest in the estate.

There may be a time when a senior may become confused or disoriented due a stroke, post surgery anesthesia, destabilizing pain of shingles or even negative effects of excessive, inappropriate medication/delirium. However if and when that person recovers, it strongly appears that the system is set up to oppose that person’s efforts to regain their right to autonomy and self determination.

Right To Legal Counsel Denied

Even an insane criminal is not denied the right to a lawyer. However a person who has been declared incompetent now has no access to his/her financial resources to hire legal counsel.

The appointed agent/guardian/trustee may deny the senior the right to hire legal counsel and often does so or refuses to pay any counsel.

We are aware of an instance where the family’s lawyer determined that the dependant adult should be disallowed access to a lawyer.

Right To Freedom Of Association Denied

The Guardian/Agent has the power to determine who the senior will be allowed to visit with. They have full power to isolate the senior.

The dependant adult may be placed in a locked unit, social life severely restricted. Those who are able and willing to visit senior are forbidden by family and or court from doing so, the senior is not allowed out of the locked unit unless taken out by those who placed him/her there.The seniors facility acts as the enforcer. Many days there are no visitors or phone calls.

One senior has said he feels like he is a prisoner of war. Another has told his friends that he feels as if he has been buried alive.

Right To Disclosure Denied

All criminals have the right to full disclosure.

However, when one is a dependant adult senior, one is denied the right to review documents/assessments which declared him incompetent.

We know that in some instances, the results of assessments have been manipulated in favour of those who wish to continue the senior’s dependant status. When you have no rights how can you complain?

A complaint has been made to the Law Society of Alberta concerning a lawyer of the Office of the Public Guardian, who deliberately mislead the court with untruths. The senior was seeking to have the Guardianship Order revoked.

The lawyer stated to the Court:

“There is no evidence… that there is any capacity” -November 6/06

Accountability Factor

There is no onus of duty of care on those who assume the duty of Agent, Guardian or Trustee.

When a senior has been declared incompetent, there appears to be no one to whom the senior can appeal. In the Dependent Adult Act, there is no guarantee that the best interests of the senior will be addressed or protected.

The Power of Attorney and Personal Directive can be prepared and executed without legal counsel, therefore a multi million dollar estate can be seized without lawyer or court order. This has happened.

The Acts are often breached, because no one enforces offences or holds those who are in breach accountable.

There is no protection for those who have lost their rights. Because of the seriously flawed nature of the Protection For Persons in Care Act & the Health Facilities Review Committee Act, which allegedly exists to protect seniors;, complaints made against Agents/Guardians/Trustees who are abusive towards a dependant adult senior, are disregarded and dismissed by these government agencies.

We are aware of situations where the guardian has interfered with a senior’s health care, dental care. We are aware where a guardian has kept persons in inappropriate, inferior housing.

Disallowed the publishing by media, statements made by a dependant adult.

Right To A Fair Court Hearing Denied

The surrogate court does not allow the senior to address the court or speak in his own defense. And if the Agent or Guardian decides that the senior will not be allowed to attend, he/she will not be allowed to attend the hearing.

One senior asked,

“How can they have a court hearing about me, without me?”

The court, in complete disregard of these Alberta citizens, refers to these seniors as “the estate of”, as if they were already deceased.

Courts rely on accumulated documents to determine competency. Documents are provided by lawyers, Guardian and Trustee officers who may not know or hardly know the individual, whose right to freedom is being determined.

Often these matters may continue on for years, we are aware of one such estate matter which has been before the Edmonton Surrogate Court since 1996 and is still ongoing.

Seniors, who may be in their 70’s or 80’s, may be kept going from one stressful assessment to another, having the matter before the court, hopeful their rights will
be restored. Their estate is withheld, literally stripping them naked, rather than allowing the senior to go forward in his/her life to enjoy the fruits of his/her lifelong labors.

Who Pays?

The senior/dependant adult pays.

His hard earned money pays for his keep if he is being detained in a facility.

His money pays for the guardianship/trusteeship applications.

His carefully earned money pays for the lawyer who may be retained by his family, and who is abusing him and denying him his rights.

The senior’s money pays for ongoing court costs. In surrogate court matters, the court orders that all lawyers get paid, from the dependant adult’s estate.

This is a make work project for lawyers, physicians, judges and others which may continue on for years, until the estate is exhausted.

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