Mok (Re)

2022 BCSC 2440 Mok (Re) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mok (Re), 2022 BCSC 2440 Date: 20220209 Docket: S216822 Registry: Vancouver RE: IN THE MATTER OF THE PATIENTS PROPERTY ACT [R.S.B.C. 1996] CHAPTER 349 AND: IN THE MATTER OF LIN HING MOK - and - Docket: S218106 Registry: Vancouver RE: IN THE MATTER OF THE PATIENTS PROPERTY ACT [R.S.B.C. 1996] CHAPTER 349 AND: IN THE MATTER OF LIN HING MOK Before: The Honourable Justice Mayer Oral Reasons for Judgment In Chambers Counsel for the Petitioners Carol Wong, Lin Mok and Manda Mok (by videoconference): R. Breeze Counsel for the Petitioners Wai Mok and Kitty Zhang (by videoconference): W. Leung Place and Date of Hearing: Vancouver, B.C. February 9, 2022 Place and Date of Judgment: Vancouver, B.C. February 9, 2022 [1] THE COURT: I have two competing petitions before me, both seeking the appointment of a committee of the estate and a committee of the person of the potential patient Lin Hing Mok, who is the mother or mother-in-law of the petitioners in both proceedings. [2] By previous order of this Court, the petitions at issue were ordered to be heard together, with evidence filed in both utilized in the application before me. [3] The petitioners Carol Wong and Manda Mok, who are both daughters of Lin Hing Mok, seek a declaration that by reason of mental infirmity arising from disease, age, or otherwise, Lin Hing Mok is incapable of managing her person and her affairs. In addition, they seek orders that they be appointed as co‑committees of the person and of the estate of Lin Hing Mok, without bond. Finally, they seek an order that they are paid their reasonable expenses of and incidental to this application from the estate of Lin Hing Mok on a full indemnity basis. [4] In the competing petition, filed by Wai Kong Mok and by his spouse Kitty Zhang, the petitioners seek orders of the same nature in their favour. That is, they also seek a declaration that Lin Hing Mok is not capable of managing herself or her affairs. As well, with respect to committeeships, they seek an order that Wai Kong Mok, who I will refer to as "Eric" going forward, be appointed as committee of the estate of Lin Hing Mok without bond, or in the alternative with bond, and that both he and Kitty Zhang be appointed as co‑committees of the person of Lin Hing Mok. Declaration of Incapacity [5] I am going to deal first with the application of both parties for a declaration that Lin Hing Mok be declared by reason of mental infirmity, disease, age, or otherwise, of being incapable of managing her person and affairs. I was taken by counsel for Carol and Manda to evidence which satisfies me that the declaration sought is appropriate and should be made. [6] In particular, I was taken to evidence of Dr. Wilson Li, physician, by way of affidavit filed July 23, 2021, in which Dr. Li sets out his opinion that: Mrs. Mok is unable to carry out the most instrumental activities of daily living without assistance, including doing her own shopping and making decisions about where she should live or decisions regarding her own safety. [7] In his affidavit Dr. Li also deposes that during his examination Lin Hing Mok was unaware of the nature and extent of her finances. [8] I was also taken to the affidavit of Dr. Eric Cadesky, also a physician, specializing in family medicine, filed July 23, 2021. It is Dr. Cadesky's opinion that: Mrs. Mok is not capable of managing her person or her affairs by reason of mental infirmity caused by dementia. [9] Finally, I was taken to medical evidence consisting of a consult report prepared by Vancouver Coastal Health after Lin Hing Mok had been admitted to hospital in April 2020, after she fell outside her home in Vancouver and sustained a head injury. The consult report itself was prepared on April 9, 2020, and notes that during examination Lin Hing Mok was not making a lot of sense, was talking quickly, was going off on tangents and appeared to be forgetful in a number of respects, including with respect to what she had eaten. Under the heading "Personal History" the consult report states that "Mrs. Mok has great trouble with her attention and concentration" and notes that she could not perform simple tasks such as counting from one to five forward or backwards. [10] The impression, recorded in the consult report, was that Lin Hing Mok was suffering from delirium as well as cognitive impairment from a traumatic brain injury. [11] I refer to the April 9, 2020 consult report not because it is necessary for the purposes of forming a conclusion with respect to Lin Hing Mok's current capacity, but because it is relevant to additional issues involving steps that were taken by Eric Mok pursuant to a power of attorney he obtained in his favour after his mother sustained her head injury and was admitted to hospital, I understand, for a number of weeks. [12] The order sought by both sets of petitioners, for a declaration that Lin Hing Mok is incapable of managing her personal affairs and her estate, is granted. Appointment of Committees of the Person and of the Estate of Lin Hing Mok [13] I will next deal with the issue of appropriate committees for the person and for the estate of Lin Hing Mok. [14] Carol and Manda contend that they should be appointed as Lin Hing Mok's co-committees, both of her person and in respect of her estate, because Eric, in his capacity as attorney, has not satisfied his obligations under the Power of Attorney Act, R.S.B.C. 1996, c. 370 or regulations. [15] Further, Carol and Manda, without making an explicit accusation of fraud on the part of Eric, are not satisfied that Eric understands and will appropriately carry out his responsibility to ensure that their mother's assets are maintained for her interest and for the interest of her estate. [16] With respect to those assets, they consist of one item, that being the net sale proceeds from the sale of Lin Hing Mok's home in November 2020 after she was admitted to hospital and eventually to a care home. Those funds, I am advised by counsel for Eric, are approximately $1.236 million, and are currently being held in an account in Eric's sole name. [17] An enduring power of attorney was signed by Lin Hing Mok, Eric and Kitty on or about June 23, 2020. Under the power of attorney, Eric and Kitty were provided with the ability to, amongst other things, manage the finances of Lin Hing Mok. [18] Pursuant to s. 19‑1 and s. 20-1 of the Power of Attorney Act, Eric's responsibilities are prescribed in respect of the steps that he could take in management of his mother's affairs. [19] Pursuant to s. 19‑1 of the Power of Attorney Act, Eric was required to: (a) act honestly and in good faith; (b) exercise appropriate care and diligence in managing his mother's finances; (c) act within the authority given to him; and, (d) keep the prescribed records and produce the prescribed records for inspection and copying at the request of the adult. [20] In addition, under s. 20-1 of the Power of Attorney Act, Eric was permitted to make a gift or loan or a charitable gift from his mother's property, if the enduring power of attorney permitted it, and if not was limited in terms of the amount of the gift provided. [21] In this petition, the application of Carol and Manda was served on the Public Guardian and Trustee, who, although they have declined to appear in this matter, have filed a response to petition, which is their usual process. [22] The Public Guardian and Trustee set out, in my view, a helpful factual summary along with a series of recommendations as to how the estate of Lin Hing Mok should be managed going forward. [23] The Public Guardian and Trustee responded that the medical evidence supports a declaration that Lin Hing Mok is incapable of managing herself and her affairs. I have already found that to be the case and have made a declaration in that respect. [24] The Public Guardian and Trustee notes that Eric and Kitty were granted a power of attorney by Lin Hing Mok on June 23, 2020. The Public Guardian and Trustee notes that they have deposed that, using the power of attorney, they sold Lin Hing Mok's home in Vancouver and have deposited the net proceeds from the sale into accounts in Eric's sole name. The Public Guardian and Trustee then goes on to note, and I accept this conclusion, that this sale was contrary to the Power of Attorney Act, which sets out at s. 19‑4: An attorney must keep the adult's property separate from his or her own. [25] By effecting a transfer of the net sale proceeds from the home into his own account, Eric has breached s. 19‑4 of the Power of Attorney Act. [26] The Public Guardian and Trustee notes that although Eric deposed that he transferred Lin Hing Mok's funds into his own account as a precaution against potential fraud, that this is not a sufficient justification for divesting her of her assets. The Public Guardian and Trustee notes that other arrangements could have been made to protect Lin Hing Mok's assets short of Eric transferring them to his sole control. I agree entirely with the Public Guardian and Trustee's comments in this respect. [27] First, there is not a sufficient evidentiary basis on which I can find a justification for Eric transferring his mother's money from her account, first by facilitating the creation of a joint account over which he would have equal rights, and then later by transferring the funds into his own accounts. [28] Moving back to the Public Guardian and Trustee's comments. The Public Guardian and Trustee notes that Eric and Kitty have only provided an estimate of the value of Lin Hing Mok's estate, and that as her attorney, they were required to keep records of her assets and income. Implicit in that is a finding that they have failed to do so. In that respect, the Public Guardian and Trustee refers to s. 19‑1 of the Power of Attorney Act, which requires an attorney to keep prescribed records and to produce the records for inspection and copying at the request of the adult. Again, Eric and Kitty have failed to comply with the requirements of s. 19‑1(b) of the Power of Attorney Act. [29] The Public Guardian and Trustee set out a series of recommendations, including that within 90 days of an order of the Court appointing committees Eric and Kitty should produce a complete accounting for the period during which they exercised their duties. Further, the Public Guardian and Trustee requests or recommends that the accounting be produced to the Public Guardian and Trustee, assumedly for their review. [30] With respect to the potential for Eric and Kitty to continue to act as co-committees of the estate of Lin Hing Mok, the Public Guardian and Trustee recommends that if they are appointed, they provide security as a result of their failures to comply with their statutory duties as attorney. [31] In addition, the Public Guardian and Trustee recommends that within 90 days of appointment, if they are appointed, Eric and Kitty shall transfer all of Lin Hing Mok's assets back to her, and her assets be maintained in accounts solely in her name. [32] Further, the Public Guardian and Trustee recommends that, after the funds have been returned to Lin Hing Mok, Eric and Kitty shall have no access to the funds or any successor accounts other than for reinvestment purposes without prior written permission of the Public Guardian and Trustee or an order of the Court, and that the financial institution be served with a copy of this order to ensure that these events do not occur. [33] The Public Guardian and Trustee also recommends that upon the assets of Lin Hing Mok being returned to accounts in her sole name, or on a later date as agreed between the committees and the Public Guardian and Trustee in writing, that the committees file with the Court an affidavit describing all of the assets, liabilities and income of Lin Hing Mok, including providing account numbers, balances and branch addresses. [34] I do not think I need to go into the evidence in detail. I am satisfied, as I have indicated, that Eric, in his capacity as attorney, did not comply with his obligations under the Power of Attorney Act. As a result, this causes me significant concern with respect to Eric being appointed as committee of the estate of Lin Hing Mok. [35] In that respect, I will now turn to an analysis of the law and the facts with respect to the appointment of a committee of the estate of Lin Hing Mok. Section 6 of the Patients Property Act, R.S.B.C. 1996, c. 349, provides that a court may appoint a committee or rescind the appointment of a person appointed as committee. The Patients Property Act itself does not set out specific criteria for the selection of an appropriate committee but provides at s. 18 that 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. [36] As set out in paragraph 32 of the decision of Justice Dardi, as she then was, in Bowman (Re), 2009 BCSC 523: [32] On an application for either the appointment or removal of a committee, the test for determining who is appropriate to act as a committee invokes the parens patriae jurisdiction of this court and is governed by an assessment of who will serve the patient's best interests: British Columbia (Public Trustee) v. Pollen (1996), 15 E.T.R. (2d) 154, [1997] B.C.W.L.D. 042; Re Poon, 2005 BCSC 254, 14 E.T.R. (3d) 29; and s. 28 of the Act. This inquiry includes a consideration of who can best deal with the patient's financial affairs, nurture her estate, and see that her income and estate are applied for her greatest benefit: Re Pineo, [1985] B.C.W.L.D. 1982. [37] Further, as set out at paragraph 33 of the decision in Bowman, with reference to the decision in Re Farquhar (19 June 2008), Vancouver S081503 (B.C.S.C.), in particular paragraph 63, Justice Dardi included the following citation which I also rely upon: Additional significant factors the court is to consider are the proposed committee's previous involvement with the patient or his family, the proposed committee's knowledge and understanding of the patient's situation and needs, the proposed committee's level of experience and capability in performing the duties of committee, any kind of a plan of the proposed committee for the management of the patient, and any potential conflict of interest between the proposed committee and the patient. [Internal citations omitted]. [38] In this case, I do not have evidence on which I can conclude that there is a conflict of interest necessarily arising between Eric and Lin Hing Mok. I can say, though, that given that Eric has, perhaps unwittingly, breached his obligations in carrying out his duties as her attorney, it would be potentially problematic to consider his appointment as committee of the estate of Lin Hing Mok in this case. [39] With respect to the relative capabilities of Eric, as opposed to his sisters Carol and Manda, to act as committee of the estate of their mother, in some respects both sides appear to have the ability to assist their mother with the management of her finances. The evidence establishes that Eric, and as well his sisters, Manda and Carol, have previously been involved in assisting Lin Hing Mok in this respect. [40] I note that Eric is currently 63 years old and employed as an electrician's apprentice. On the other side, I note that Manda currently works as a social worker with seniors, including, I understand, seniors with mental‑health issues. Carol I am advised is currently retired. I am uncertain as to what her present occupation is. [41] There is no obvious choice for the family member most capable of managing the financial affairs of Lin Hing Mok, but for the reasons which I have already set out or summarized, given Eric's failures in his capacity as attorney, I do not consider it appropriate that he be appointed as committee of the estate and instead order, as sought, that Manda and Carol be appointed as co-committees of the estate of their mother. [42] With respect to the appointment of a committee of the person, the evidence establishes, and counsel essentially agree as a result and in response to questions from the Court, that all of the members of Lin Hing Mok's family have been involved in her care over the years, prior to and after her admission first to hospital in April 2020, and also after her admission to a long‑term care home. It appears as though all of the children care for their mother, and they and their extended families, including Kitty and Raymond, who I understand is Carol's spouse, have had a role in caring for Lin Hing Mok. [43] In response to questions from the Court, both counsel advise that there have not been insurmountable conflicts between the parties with respect to Lin Hing Mok's care needs at this time. Although the parties may not have always agreed, they appear to have been able to form a consensus with respect to what is in the best interests of Lin Hing Mok from a health care standpoint. In that respect there is no disagreement that Lin Hing Mok should remain in her current care home under constant supervision from health care professionals. I note as well that Kitty is employed as a care aide in the care home where Lin Hing Mok currently resides. [44] With respect to the considerations that the Court must make in determining an appropriate committee of the person, a non‑exhaustive list of factors was helpfully set out by Justice Masuhara in the decision in Stewart (Re), 2014 BCSC 2321, in particular at paragraph 29 of his reasons. I will not review all of the factors set out by Justice Masuhara in detail, but I will refer to some. [45] The Court is to consider whether the appointment reflects the patient's wishes and obviously whether he or she was capable of forming such a wish. Counsel for Eric and for Kitty contend that Lin Hing Mok's previously expressed wishes, in particular as evidenced by their appointment as executors in Lin Hing Mok's will, made I believe in 2004, suggest that her wish would be that they be appointed as co-committees of her person. [46] I am not satisfied that Lin Hing Mok's wishes can be determined at this time with any degree of certainty. As a result, I think other factors must be considered. [47] The Court will also consider the level of previous involvement of the proposed committee or committees with the patient, and that usually family members are preferred. In this case, I am satisfied that direct and extended family members of Lin Hing Mok have been involved with her care, but in my view, this is not a situation where one family member was disproportionately caring for her. [48] I also note in particular the stated preference that family members be appointed as committees. I agree that would certainly be a starting point and that there is a presumption that immediate family members are more appropriately appointed to make sensitive and intimate decisions with respect to somebody's health care needs. Again, this is not to take away from the importance of in‑laws to an individual's well being, but in terms of preference I think preference should be afforded to direct family members, all other things being equal. [49] Another important factor as set out in the decision in Stewart (Re) is whether a proposed committee has breached a fiduciary duty owed to the patient or engaged in an activity which diminishes confidence in that person's abilities to properly handle a patient's care. In my view, the failures on the part of Eric and Kitty, in their capacity as attorney, to maintain an appropriate separation between their role as potential beneficiaries under the estate of Lin Hing Mok and their role as her attorney suggests that they may have difficulties understanding the appropriate separation in respect of those roles. [50] I also have some concerns with the appointment of Kitty as committee of the person of Lin Hing Mok, given that she works at the care home where Lin Hing Mok currently resides. In my view, that has the potential to raise a conflict in interest. For example, Kitty may be in a situation where she is not appropriately able to advocate for Lin Hing Mok's care, or to argue, for example, that a treatment is not being properly provided, given her employment status at the same facility. [51] For all of these reasons, I find that it is not appropriate for Kitty to be appointed as committee of the person, but I do not find that there is a basis to prefer one faction over another when it comes to making decisions for Lin Hing's Mok's care. In my view, an effort should be made for Lin Hing Mok's, let us say local children, that is children who reside within the Lower Mainland area, to take on this role. As a result I order that Eric, Carol and Manda be appointed as co‑committees of the person of their mother. Conclusion [52] Now, with respect to the terms of the order that flow from this, I am inclined to adopt the proposed form of order provided by counsel for Carol and Manda, and in particular the form of order in which Carol and Manda would be appointed as co‑committees of the person and the estate of Lin Hing Mok, without bond. In my view a bond is not necessary in this case. [53] I will not read the form of order. I trust that that is sufficient, Ms. Breeze, for you to prepare a draft order for the Court. I think I have spoken to all of the issues that were raised. [54] Any questions--Ms. Leung? [55] CSL. W. LEUNG: Yes, I do not have the forms of orders drafted by my friend, so I cannot really see what they reflect-- [56] THE COURT: I will have to read them then, I will proceed to do that. Please take notes. [57] I order: (a) The petitioners Carol and Manda are appointed as co‑committees of the estate of the patient, Lin Hing Mok, without bond. (b) The petitioners Carol and Manda and the cross-petitioner Eric be appointed as co‑committees of the person of Lin Hing Mok without bond. (c) Within 90 days of the date of this order, Eric Mok and Kitty Zhang shall produce a complete accounting for the period during which they exercised their duties under the power of attorney granted by Lin Hing Mok on June 23, 2020, and they shall provide that accounting to the Public Guardian and Trustee for review. (d) Within 90 days of the date of this order appointing the committees, the petitioners Carol and Manda shall arrange to transfer all of Lin Hing Mok's funds back to an account solely in her name. (e) After Lin Hing Mok's funds have been transferred to an account solely in her name, Carol and Manda shall have no access to the funds in this account, or in any successor accounts, other than for reinvestment purposes or for living, care home and medical expenses of Lin Hing Mok, without the prior written permission of the Public Guardian and Trustee or a further order of this Court on notice to the Public Guardian and Trustee. (f) Carol and Manda shall serve the financial institution that holds the account solely in the name of Lin Hing Mok, to which her funds have returned, with a copy of the order of this Court and shall forthwith provide the proof of service to the Public Guardian and Trustee. (g) Upon the return of Lin Hing Mok's funds to an account in her sole name, Carol and Manda shall, within 90 days of the date of the order appointing them as committees, or a later date as agreed to between them and the Public Guardian and Trustee in writing, file with the Court and deliver to the Public Guardian and Trustee a further affidavit fully describing all of the assets, liabilities and income of Lin Hing Mok, including account numbers, balances and branch addresses. (h) As I said previously, I am not making an order with respect to the requirement for provision of security or a bond. I will skip over that. (i) Finally, as I stated earlier there is an order that Lin Hing Mok is declared incapable of managing herself or her affairs. (j) With respect to costs, in my view the costs of the petitioners Manda and Carol and the cross-petitioners Eric and Kitty should be paid out of the estate in this case. [58] I will hear submissions on that. I appreciate that there is an argument certainly that Manda and Carol have been largely successful, but in the circumstances I am more comfortable allowing the parties to obtain their costs on a full indemnity basis from the estate. (SUBMISSIONS ON COSTS) [59] THE COURT: All right. I am going to stick with that order, then, Ms. Breeze. I think in the context of a family conflict, it would actually be potentially damaging for one side to be penalized by having to pay costs in this case. Again, if there was any evidence on which I could determine that either Eric or Kitty were acting inappropriately and fraudulently, then my reasons would be very different, but your clients are not taking that position. The evidence does not suggest that that is the case. I think that Eric and Kitty made errors, and I think they were bad errors, but I do not think they amount to fraud. "Mayer, J."