Novo (Re)

2018 BCSC 1345 Novo (Re) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Novo (Re), 2018 BCSC 1345 Date: 20180423 Docket: S178231 Registry: Vancouver In the Matter of The Patients Property Act, R.S.B.C., 1996, c. 349 and In the Matter of Jose Freitas Novo Docket: S174855 Registry: Vancouver In the Matter of The Patients Property Act, R.S.B.C., 1996, c. 349 and In the Matter of Jose Freitas Novo Before: The Honourable Madam Justice Fleming Oral Ruling Re Appointment of Committee of the Person In Chambers Counsel for Celina Loyer: J.A. Sowa Counsel for Raul Gomes, Noel Nunes and Katrina Novo: A.E. Rebane Place and Date of Hearing: Vancouver, B.C. February 8 & April 19, 2018 Place and Date of Ruling: Vancouver, B.C. April 23, 2018 [1] THE COURT: These reasons deal with cross applications seeking appointment as committee of the person for Jose Freitas Novo, brought in two, petition proceedings. [2] Jose is 91 years old. His spouse is deceased, and he has no children. His nearest relatives are his brother Caetano Gomes and several nieces and nephews. One of his nieces and the daughter of Caetano, Celina Loyer, is the petitioner and applicant in one proceeding. Jose's nephews, Noel Nunes and Raul Gomes, and a great‑niece, Katrina Novo, are the petitioners and applicants in the other proceeding. Jose's other nieces and nephews are respondents. They include John Novo, the father of Katrina; Antonio Novo; Jose De Sousa; Michael Gomes; Filomena Gomes; Paul Gomes; and Maria Cirillo. [3] I refer to the parties by their first names to avoid confusion. [4] All agree that Jose is incapable of managing himself or his affairs because of dementia and therefore he is a patient under the Patients Property Act, [RSBC 1996] c. 349 ("PPA"). They also agree that it is not in his best interests to be served with applications. [5] Initially the petitioners sought and opposed one another's appointment as committee of Jose's estate. During the course of the hearing, however, the parties indicated a willingness to consent to the Public Guardian and Trustee being appointed to that role. [6] Noel, Raul and Katrina also proposed that Raul be appointed as committee of Jose's person with Celina. Celina takes the position it is in Jose's best interests that she alone be appointed. Caetano consents to Celina being the sole committee of Jose's person. Maria takes no position. The other nieces and nephews oppose Celina's application and consent to Noel, Raul and Katrina being committees. [7] The Public Guardian and Trustee takes the position the medical evidence supports a declaration that Jose is incapable and does not oppose the appointment of Celina as the committee without bond or other restrictions, because Jose named her as his attorney under a power of attorney, his representative under a representation agreement and an executor in his previous will. Regarding the appointment of the other petitioners, the Public Guardian and Trustee asserts that Noel and Katrina must be subject to security and recommends that in lieu of a bond, an order be granted restricting them. Background [8] Jose's wife died in 1996. [9] Until November 2016 he continued to live in what had been their home located in New Westminster. [10] In or about 2011 Celina left her job to raise her daughter, Sofia. Celina and her family live in Burnaby. Raul lives and always has in Calgary, where he works full time as a manager. Noel has lived in Montreal since he was a young child. He is a self‑employed real estate investor and manager and describes himself as semi retired. Katrina is 23 years old. She lives in New Westminster with her husband. She is employed full time as a legal assistant. She and her husband also manage a restaurant. [11] In or about December 21, 2004, Jose added Celina as an owner of his term deposit and chequing accounts with Westminster Savings. [12] An unsigned copy indicates that in December 2005 Jose executed a will appointing Celina and Raul as joint executors and dividing the residue of his estate equally among ten nieces and nephews. [13] In or about October 14, 2014, Jose executed a representation agreement with Celina as the original representative and Raul as the alternate. A very poor-quality photograph of an unsigned copy indicates that on the same day Jose executed a new will appointing Celina as the executor of his estate, with Raul as the alternate. The will gives Celina all of his "articles and his home." In the event of her death on the material date the interest in his home is to be divided among her children, with the residue of his estate to be divided equally among his nieces and nephews, including Celina. [14] In or about November 27, 2014, Jose executed a power of attorney appointing Celina as his attorney and Raul as an alternate. Both the power of attorney and the representation agreement are signed by Jose's counsel, who also prepared his 2014 will. [15] For many years Jose has shared a close friendship with Maria Vieira. Maria is 83 years old and lives independently in Burnaby. [16] Jose suffers from diabetes. In or about November 22, 2016, Celina and Caetano took Jose who appeared very ill to the emergency department of Royal Columbian Hospital. They were told he was suffering from extreme high blood sugar likely caused by not taking his diabetes medication. He was admitted and in December 2017 transferred to Queen's Park Care Centre. During his hospitalization Celina exercised her powers as Jose's attorney for the first time. [17] In early February 2017 Celina placed Jose in a private residential care facility located in Delta called Delta View Life Enrichment Centre, where her mother had previously resided ("Delta View"). Legal Framework [18] The PPA empowers the court to appoint a committee for a person declared incapable of managing himself and his affairs who then falls within the definition of a "patient". The PPA requires affidavit evidence from two medical practitioners setting out the opinion that a person is incapable of managing himself and his affairs because of mental infirmity arising from disease, age or otherwise. Once a person becomes a patient every power of attorney is terminated. The same occurs with every representation agreement unless the court orders otherwise. [19] The PPA does not provide any criteria for appointing a committee. Section 18 reads, however: A committee must exercise the committee's powers for the benefit of the patient and the patient's family having regard to the nature and value of the property of the patient and the circumstances and needs of the patient and the patient's family. [20] An application for appointment of a committee also invokes the court's parens patriae jurisdiction. The paramount consideration is the patient's best interests. Cases have identified and considered various factors that guide the analysis; see: Vranic (Re), 2007 BCSC 1949; Bowman (Re), 2009 BCSC 523; Palamarek (Re), 2011 BCSC 563; Matthews (Re), 2013 BCSC 1045; and Sangha (Re), 2013 BCSC 1965. The factors that may or may not be applicable and the weight to be given to any particular factor will depend on the circumstances of the case. In other words, the inquiry is fact specific. [21] Here, where the issue is who should be appointed committee of Jose's person, the significant factors include the following: a) the proposed committee's level of previous involvement with Jose; b) the proposed committee's knowledge and understanding of his needs and circumstances; c) the proposed committee's experience and capability in performing the duties of committee; d) whether the proposed committee will provide Jose with love and support; e) which of the proposed committees will best advocate for the patient Jose's medical needs; f) whether the proposed committee has an appropriate plan of care for Jose; g) whether or not a division of responsibilities among the proposed committees would serve Jose's best interests; h) Jose's wishes both before and since his capacity has been impaired, bearing in mind his mental infirmity; i) the likely impact of any conflict between family members and whether the proposed committee would be likely to consult with immediate family members. The list is not intended to be exhaustive. Nor are the factors set out in any particular order. Analysis Declaration [22] There is no dispute about the medical evidence regarding Jose's incapacity, which includes affidavits from Dr. Ronald Davidson and Dr. Rex Long, both qualified physicians. Based on their medical examinations of Jose and a review of his medical records, each expresses the opinion that Jose by reason of mental infirmity is incapable of managing himself and his affairs. Dr. Long concluded that Jose suffers from moderate cognitive impairment due to Alzheimer's or vascular dementia. On March 3, 2017, Jose scored very poorly on a standard cognitive screening test. Dr. Long also found that Jose's short‑term memory was poor, he had no recall, he was not aware of his finances and was not able to perform simple financial calculations. Dr. Long commented that Jose could not manage his own hygiene and required full time supervision and care for all activities of daily living. [23] Dr. Davidson has been Jose's physician since his arrival at Delta View. He diagnosed Jose's mental infirmity as a mixed‑type dementia. His findings following an examination of Jose on March 24, 2017, are entirely consistent with those of Dr. Long. Dr. Davidson also found, however, that Jose was not oriented to place and time. Jose scored low on the standard cognitive screening test but higher than the previous result. When Dr. Davidson examined Jose again in January 2018, his score was the same very poor score obtained by Dr. Long. Dr. Davidson concluded that Jose is not able to decide where he should be living, to make informed health care decisions or decisions to ensure his own safety. Nor can he understand the nature and consequence of various medical procedures. [24] Both Dr. Davidson and Dr. Long opined that Jose's condition will deteriorate rather than improve over time. [25] Based on their evidence, I am entirely satisfied that Jose is incapable of managing himself and his affairs by reason of mental infirmity arising from moderate dementia, Alzheimer's disease and/or vascular dementia and declare him to be so. Accordingly Jose is a "patient" within the meaning of the PPA. Committee of the Person [26] The balance of the evidence includes affidavits from the parties and some others, including Jose's friend Maria. [27] Although during the hearing Raul, Noel and Katrina proposed Raul be appointed committee of Jose's person with Celina, their affidavits and those of other respondents are fraught with what I have assessed to be unfounded accusations against her. In general, the accusations are unsupported by any evidence and amount to conclusions drawn from suspicions about Celina's motivations and intentions. Celina is accused, for example, of financial impropriety, based in part on her co‑ownership of two of Jose's accounts, although he made the decision to add her many, many years before there was any concern about his mental competence. It is also suggested she may have influenced Jose to change his will in 2014 for her benefit, but again, there is nothing more than evidence of opportunity. Further Raul, Noel and Katrina submitted Celina must have applied to be appointed committee, to secure her inheritance, arguing if Jose's house sold while she was simply his attorney, the proceeds would form part of the residue of the estate. Section 48 of WESA makes it clear, however, this is not the case. The submission rested, in other words, on an incorrect assumption about the law. [28] I note there are a number of conflicts in the evidence, some of which I cannot fairly resolve. The independent evidence, Delta View's progress notes and the medical opinion evidence, as well as the probabilities affecting the case enable me, however, to resolve most of the significant conflicts related to the suitability of the proposed committees. [29] Bearing this in mind and the evidence relevant to the factors set out above, I am firmly of the view that it is in Jose's best interests that Celina be appointed committee of his person. Previous Involvement [30] It is obvious that among the applicants Celina shares the closest relationship with Jose, has spent the most amount of time with him and provided him with the most if not the only support over the last several years. Celina deposes to the details of her increasing involvement with Jose as he aged. By 2002 she and her father were visiting and calling him weekly. By about 2008 she and her father took turns calling him every day. After leaving her job in November 2011, Celina began assisting Jose regularly taking him grocery shopping every week, to medical appointments, to the bank to pay bills, and the pharmacy to pick up medication, as well as other errands. [31] Celina describes becoming even more involved once Jose was not able to drive in 2014. She noticed he was hoarding a range of items which filled his home. Despite mobility issues he refused to use a cane or a walker. She became concerned the hoarded items, including boxes located up and down the stairs, were a tripping hazard and made it difficult for Jose to get around inside. She was also concerned about his safety because he would use the stove and old electrical heaters instead of the furnace to heat the home and then leave without turning them off. Photographs corroborate her evidence about hoarding, depicting a very significant problem both inside and outside the house. [32] Much of Celina's evidence about her level of involvement with Jose is corroborated by her father's evidence. Both deposed to celebrating holidays and special occasions with Jose, including a day at Christmas and New Years Day. In addition, a number of photographs show Celina's daughter, Sofia, with Jose at his home from a young age, particularly at Halloween. The evidence of Jamie Smith, Jose's next-door neighbour, corroborates Celina's account of Jose's decline. In particular he noted Jose began to act oddly about one year before he was hospitalized in November 2016. Mr. Smith would see him walking around the neighbourhood at night with his wheelbarrow taking things from neighbours' yards. Mr. Smith also confirmed Celina and her father visited Jose regularly. He describes seeing Celina coming to the home at least once a week before Jose was hospitalized. [33] Celina indicates that in or above 2015 she contacted two different doctors who had provided care to him in the past regarding his hoarding behaviour, also concerned he was not taking his diabetes medication regularly or eating properly. Jose was referred to a specialized seniors' clinic in New Westminster. Celina took him there in early November 2016 and was told he was doing well physically but they saw some signs of minor dementia. [34] When he appeared very unwell on November 22, 2016, she and her father, as I have indicated, took Jose to RCH. While he was at RCH and Queen's Park, Celina had many meetings with doctors, nurses and social workers regarding Jose's care needs and discharge planning. One social worker suggested Jose could go home with home care; another suggested a care home was a good option. Celina deposes to attending Jose's home every day during that time to care for his dog, which Mr. Smith corroborates. [35] Celina states she received no notice of Jose's discharge from Queen's Park. He was having trouble walking, was catheterized, needed a lot of help with personal care and his blood sugar had not yet stabilize. She decided he could not return to home because of safety issues and his health and was relieved when she learned Delta View had a room available. Both Celina and her father described the facility and its staff as exceptional based on the care her mother had received there. [36] Since his placement at Delta View, Celina has visited Jose about three times a week. She calls him in the evening on the days she does not visit. Progress notes indicate she is also in frequent communication with Delta View staff. She makes appropriate inquiries and advocates for Jose's medical needs. She also continues to run errands for him. [37] In contrast, Raul and Noel have had limited involvement with Jose over the years. Raul describes visiting Jose once at his home for one day in 2008 and speaking to him by phone on his birthday and at Christmas each year. Similarly, Noel said he saw Jose four times during a two week trip to Vancouver in 2002. They visited again for several weeks in 2008 when Jose came to Montreal. Noel also describes speaking to Jose by phone several times a year, more so before his own mother's death of dementia in 2016. [38] Katrina has had even less direct one-on-one involvement with Jose, although she lives locally. She described meeting him for the first time in 2008 at her grandmother's funeral and many subsequent visits to his home with her family. After he was hospitalized she indicates her family visited Jose a few times and her mother once while he was at Queen's Park. It does not appear that Katrina ever did. Nor has she visited him at Delta View, although she states her mother and brother have seen him several times. Knowledge and Experience [39] All of the proposed committees have past experience dealing with the elderly. Noel and Katrina in particular have been involved in providing care to family members with dementia. Noel's mother died in 2016 after suffering from severe dementia. It is clear he has strong feelings about how dementia patients ought to be treated based on his mother's circumstances. Celina has been involved in supporting and caring for her mother who has suffered from dementia for many years. Understanding of Jose's Needs [40] Celina's evidence demonstrates a sensitive and deep understanding of Jose's needs and shows her decision making has been based on a genuine concern for what is best for Jose, not herself. As her counsel pointed out, the progress notes indicate that Celina struggled in particular with her decision to place Jose at Delta View, aware that he would prefer to live at home and wanting above all for him to be happy. She sought reassurance from staff that residential care was necessary for him. [41] Several affiants complain about Celina's effort to isolate Jose from Maria by placing him at Delta View. Certainly Celina attempted to prevent Maria from having any contact with Jose during the early part of his stay there. Celina deposed to being concerned Maria would provide Jose with high‑sugar food such as candy and chocolates, jeopardizing his blood sugar, because she had done so while he was in the hospital. According to Celina when she attempted to discuss the matter with Maria, she became irate and accused Celina of keeping Jose in prison. Progress notes made after Maria began to visit and call him at Delta View support her concern. Staff noted Jose received a large chocolate bar from Maria when she came to his room. He later became upset about it being removed and rationed. It is also clear from the progress notes that Maria becomes angry with staff and expresses strong suspicions when Jose does not come to the phone, as well as negative views about Celina to Jose or in his presence. The progress notes show, however, that Celina responds very appropriately to these behaviours, maintaining a focus on Jose's happiness. [42] The other proposed committees demonstrate far less insight into Jose's condition and his care needs, preoccupied with criticizing Celina and his current living arrangements. Plan of Care [43] Only Celina's plan of care for Jose is clear. If she is appointed, Jose will remain at Delta View with her ongoing involvement and support. Raul, Noel and Katrina have not identified a concrete plan. There is some indication they would explore the option of him returning home assisted by a live‑in caregiver or they would move him to a care facility located closer to Maria. In addition to the lack of evidence about this issue, I am concerned by the extent to which they and those who support them appear to minimize the risk to Jose from living at home in light of the medical evidence, which they do not dispute. [44] I am also concerned that Katrina has not taken the time to assess the appropriateness of Delta View herself and instead is prepared to simply accept the "grim views" expressed by others, including her mother, about the facility. Those views are entirely inconsistent with the progress notes, the evidence of Celina and the evidence of an independent affiant, whose husband resides at Delta View. The independent affiant describes Delta View in superlative terms. Further, Photographs depict a very pleasant physical environment. Delta View's manual sets out an impressive care model focused on the needs and best interests of the residents. Significantly, the progress notes strongly suggest that Jose is most often contented there. [45] In her earlier affidavit evidence, Celina deposed to looking for but not finding a private care home in Burnaby or New Westminster. She described public care homes as not as nice and more crowded than Delta View. [46] Paul who is not a proposed committee, deposes to calling 11 nursing homes in Burnaby and New Westminster in September 2017. He said most had waiting lists, but Royal City Manor, located much closer to Maria, had a private bed available right away. In her most recent affidavit Celina deposes to visiting there and speaking with the assistant director of care. She was advised that unlike Delta View, Royal City Manor does not provide diabetic foods. Jose would not have the benefit of a modified shower in his own bathroom and he is much less likely to receive phone calls outside of his room. At Delta View friends and family often call Jose through the reception. Staff will bring the phone to him, which facilitates communication when he is not in his room or chooses not to answer. Although some family members complained that Delta View is a locked facility which prevents wandering, Royal City Manor is also secure. Communication [47] In addition to not proposing a care plan, Raul, Noel and Katrina have not provided any evidence about how they intend to work together if appointed. Raul and Noel live in Calgary and Montreal. Leaving aside her lack of involvement up to now, Katrina's evidence suggests she will have very little time available to attend to Jose on a regular basis. [48] I view the suggestion that Raul be appointed along with Katrina as entirely unrealistic. Given the accusations made up to now, there is a serious risk Celina would be continually required to justify her actions to a critical audience, undermining rather than enhancing her role with Jose. [49] Despite the conflict, Celina has committed to keeping family members informed. Very reasonably, she has set up a password‑protected web site for this purpose. For Maria, who does not use the internet, Celina proposes sending her monthly updates in writing. Celina has also indicated that she will call family members and Maria in the event of an emergency. Jose's Wishes [50] The evidence regarding Jose's wishes and views while he had capacity demonstrate that he consistently placed Celina in the highest position of trust. He appointed her co-executor in 2005 and sole executor in 2014. He also appointed her as his representative and attorney in 2014. [51] Although Celina and the progress notes indicate that Jose wanted to and likely still wants to return home and has at times become distressed at Delta View, typically he expresses feeling content where he is, as I have indicated, as well as affection for staff members. The progress notes also indicate that Maria calls frequently and visits fairly regularly, although she does not drive, has limited mobility and Delta View is located quite a distance from her home. Accepting their friendship has been an important one for Jose and she has been negatively affected by his move, the evidence still overwhelming favours the appointment of Celina, which will mean he will continue to reside at Delta View for the foreseeable future. Conclusion and Orders [52] I therefore appoint Celina as committee of Jose's person. By consent I appoint the Public Guardian and Trustee committee of his estate, which I am hopeful may bring an end to some of the conflict between the family members based on suspicions regarding financial circumstances, and by consent I award the parties special costs payable from the estate of Jose. [53] MR. REBANE: That is for both petitions. Obviously my client's petition is dismissed. I am not familiar. I just want to make sure we are tidying this up. Maybe just so I can assist, that is that the costs are special costs with respect to both proceedings; correct, My Lady? As just two separate ‑‑ [54] THE COURT: That is what I was told was consented to. [55] MR. REBANE: And, yes, that is consent. I just wanted to make sure. [Discussion deleted] [56] THE COURT: All right. So I will just clarify that for Madam Clerk, because ‑‑ so perhaps you can tell her which petition number is yours, Mr. Rebane. [57] MR. REBANE: That is what I am going to ... mine is S178231. [58] THE COURT: So in that proceeding the petition is dismissed. [59] MR. REBANE: With ‑‑ ideally I would say it is with costs or special ‑‑ well, the respondent's and the ‑‑ with the petitioner and the respondent Celina Loyer, special costs to be paid out of the estate and that second part is by consent. [60] THE COURT: Right. And then in the other proceeding, I think rather than say the petition is granted, because I ‑‑ actually I do not have it in front of me. There was probably different relief sought than what ‑‑ than what is being granted. [61] MS. SOWA: Yeah. [Indiscernible]. [62] THE COURT: Right. So in that one the orders granted are that Celina is appointed committee of Jose's person. Actually we have jumped ahead a step. Jose is declared to be ‑‑ let me think for the precise ‑‑ [63] MR. REBANE: Make sure she is in the right petition. Are you in the one ‑‑ in the other petition, Madam Clerk? [64] THE COURT: I am sure she is. I'm asked her ... [65] MR. REBANE: Just want to make sure. [66] THE COURT: Yes. [67] MR. REBANE: 274855, that is the one we are in now. Okay. Perfect, then, My Lady. [68] THE COURT: So in the ‑‑ Celina's petition there will be a declaration, which is probably something she has sought in her petition. So we can just grant that order. And then there is an order appointing her as committee of Jose's person, and that is an order by consent appointing the PGT committee of his estate. And there is by consent an order awarding the parties special costs payable from Jose's estate. [69] MS. SOWA: [Indiscernible]. [70] THE COURT: Correct. In both proceedings there will be an order dispensing with the requirement to serve Jose. [71] MR. REBANE: That is in both proceedings, My Lady. [72] THE COURT: That is right. [Discussion deleted] "Fleming J."