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Medical Examination Ordered After Alleged Victim of Elder Abuse Denies Incapacity

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  • 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 any 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.

BC senior starts new relationship

The father suffered several strokes and struggled with psychiatric disorders including depression for decades. After the husband’s wife passed away in 2007, his daughter and her husband assisted him with daily living. In 2013, the husband appointed the son-in-law as his attorney-in-fact and the executor of his will. He also asked the son-in-law to manage his financial affairs. In July 2015 when the husband was in his mid-80s, he met his wife. He and his wife began living together six months later. There was some evidence that they got married in a small civil ceremony. If a wedding occurred, none of the husband’s family members were present.

Allegations of financial abuse

Regardless of whether they married or not, it was clear that The husband was very dependent on the wife. He was unable to care for himself. The daughter and the son-in-law alleged that the wife was isolating the husband and preventing them from seeing him (which the wife denied, stating that the daughter and the son-in-law were free to visit but chose not to). The husband appointed the wife as his Power of Attorney and his representative under a Representation Agreement for health care. He transferred money from his bank account to the wife; added her as joint account holder on his credit cards, bank account, and line of credit; and was registered as a joint tenant with the wife to the title of a townhouse. The daughter and the son-in-law were extremely concerned that the wife would misuse the authority the husband gave to her, leaving him financially devastated. The Daughter and her brother are the primary heirs to the husband’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. The daughter and the son-in-law brought a lawsuit on the husband’s behalf against the wife, with the son-in-law as litigation guardian, seeking an accounting and tracing of all property transferred from the husband to the wife. The husband said he was not a person under legal disability for the purposes of Rule 20-2 and asked the Court for an order removing the son-in-law 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 the husband 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, the husband struggled with psychiatric disorders for decades. An affidavit was filed by the Senior Vice President at the firm where the husband holds investments, appending emails with respect to her conversation with the husband on July 13, 2020 wherein she wrote: “Spoke with the client and it is clear that he is not of sound mind.” The daughter, the son-in-law and their son all attested to the husband’s diminished mental capacity. To the contrary, the wife stated that other than the periods of confusion when he has a urinary tract infection, the husband is mentally competent. Clinical records indicated that Mr. the husband’s cognitive functioning “fluctuates tremendously” with his medical conditions, particularly cardiac function and recurring urinary tract infections. However, the records also indicated that the husband repeatedly stated that he trusted the wife 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 the husband is under a legal disability as per Rule 20-2, before the substance of the lawsuit against the wife could be addressed. the husband 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 the husband 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 the husband stress, the allegations in the lawsuit are serious and Court held the view that the order is in the husband’s best interests. 

Incapacity and Estate Litigation

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.

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