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Elder Abuse, Estate Law, Lack of Capacity, Undue Influence

Medical Examination Ordered After Alleged Victim of Elder Abuse Denies Incapacity

We are often contacted by concerned family members wanting to step in to help an elderly person whom they suspect is being abused. However, bringing litigation on the senior’s behalf can present a number of challenges. What happens if the elderly person denies the abuse and insists that they are capable of handling their affairs? That situation arose in Stanford v. Murad, 2021 BCSC 130.  In that case, the court ordered an independent medical examination to determine whether the 89-year-old man in failing health was capable of exercising judgment in relation to a lawsuit brought on his behalf.

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Gerald Stanford suffered several strokes and struggled with psychiatric disorders including depression for decades. After Mr. Stanford’s wife passed away in 2007, his daughter Nicola and her husband Joseph assisted him with daily living. In 2013, Mr. Stanford appointed Joseph as his attorney-in-fact and the executor of his will. He also asked Joseph to manage his financial affairs. In July 2015 when Mr. Stanford was in his mid-80s, he met Gillian Murad. He and Gillian began living together six months later. There was some question as to whether they got married in a small civil ceremony. If a wedding occurred, no family members were invited.

Allegations of financial abuse

Regardless of whether they married or not, it was clear that Mr. Stanford was very dependent on Gillian. He was unable to care for himself. Nicola and Joseph alleged that Gillian was isolating Mr. Stanford and preventing them from seeing him. Mr. Stanford appointed Gillian as his Power of Attorney and his representative under a Representation Agreement for health care. He transferred money from his bank account to Gillian; added her as joint account holder on his credit cards, bank account, and line of credit; and added her as joint tenant on title to his townhouse. Nicola and Joseph were extremely concerned that Gillian would misuse the authority Mr. Stanford gave to her, leaving him financially devastated. Nicola and her brother Michael are the primary heirs to Mr. Stanford’s estate under his will.

Lawsuit on behalf of BC senior by litigation guardian

Rule 20-2 of the BC Supreme Court Civil Rules states that a proceeding brought by a person under legal disability must be started or defended by his or her litigation guardian. Nicola and Joseph brought a lawsuit on Mr. Stanford’s behalf against Gillian, with Joseph as litigation guardian, seeking an accounting and tracing of all property transferred from Mr. Stanford to Gillian. Mr. Stanford said he was not a person under legal disability for the purposes of Rule 20-2 and asked the Court for an order removing Joseph as his litigation guardian. The test for whether a person is under legal disability for the purposes of Rule 20-2 is whether the person is capable of instructing counsel and exercising judgment in relation to the claims in issue and the possible settlement as a reasonable person would be expected to do.

Is this BC senior under a legal disability as per Rule 20-2?

The evidence raised significant concerns as to whether Mr. Stanford is under a legal disability. He has serious physical health issues, mobility issues, speaks slowly, and suffers from lethargy and weakness. With respect to his mental health, Mr. Stanford struggled with psychiatric disorders for decades. An affidavit was filed by the Senior Vice President at the firm where Mr. Stanford holds investments, appending emails with respect to her conversation with Mr. Stanford on July 13, 2020 wherein she wrote: “Spoke with the client and it is clear that he is not of sound mind.” Joseph, Nicola and their son all attested to Mr. Stanford’s diminished mental capacity. To the contrary, Gillian stated that other than the periods of confusion when he has a urinary tract infection, Mr. Stanford is mentally competent. Clinical records indicated that Mr. Stanford’s cognitive functioning “fluctuates tremendously” with his medical conditions, particularly cardiac function and recurring urinary tract infections. However, the records also indicated that Mr. Stanford repeatedly stated that he trusted Gillian to act in his best interest for financial, personal and health care decisions.

Independent medical opinion needed to decide the issue

In light of the conflicting evidence, Madam Justice Murray concluded an independent medical opinion was needed to decide the issue of whether Mr. Stanford is under a legal disability as per Rule 20-2, before the substance of the lawsuit against Gillian could be addressed. Mr. Stanford was ordered to attend at a medical examination conducted by a physician chosen by his litigation guardian for the purpose of providing a medical opinion to the Court regarding whether Mr. Stanford is capable of instructing counsel and exercising judgment in relation to the claims in issue and possible settlement, as a reasonable person would be expected to do. While a medical examination had the potential to cause Mr. Stanford stress, the allegations in the lawsuit are serious and Court held the view that the order is in Mr. Stanford’s best interests. 

Take home point on medical opinions on incapacity

Where lack of mental capacity is claimed, a judge has discretion to take steps to determine whether a litigation guardian should be appointed on behalf of a person alleged to be under a legal disability. The Court’s discretion includes including ordering an independent medical examination by a medical doctor for the purpose of providing an opinion as to whether the person is under legal disability for the purposes of Rule 20-2.