Case Comment: The Public Trustee of the Province of British Columbia v. Dorothy Stewart Batiuk 1996 CanLII 2097 (BC SC)

Batiuk is a case that is as fascinating for its facts, and the attempts by both sides to prove those facts, as it is for its holding.

Dorothy Stewart Batiuk was an elderly woman who had suffered a stroke, and who lived with and was cared for by her husband until his death on May 6th, 1994, at which time she became the subject of a very heated committeeship application by the Public Trustee.

Shortly after Mr. Batiuk’s death, his sister and his niece arrived from Calgary to assist with funeral arrangements. They testified that they found Mrs. Batiuk living in appalling living conditions, and they immediately fired the housekeeper and discharged Mrs. Batiuk’s doctor of 14 years. The niece moved in and remained in Mrs. Batiuk’s home permanently.

The executor of Mr. Batiuk’s estate was Harry Rankin. He came to Mrs. Batiuk’s house on two separate occasions to interview her, and on two separate occasions he was denied access. The niece then informed Mr. Rankin that Mrs. Batiuk had executed a Power of Attorney in her favour, which caused Mr. Rankin to contact the Public Trustee, and the Public Trustee in turn contacted the niece, questioned her care and advised her that Mrs. Batiuk was mentally incompetent.

At this time, less than two months after the death of her husband, and before any judicial decisions had been rendered on the question of Mrs. Batiuk’s competence, the Public Trustee advised Royal Trust that Mrs. Batiuk’s Power of Attorney was invalid and caused her bank accounts to be frozen. The Public Trustee also placed a caveat on Mrs. Batiuk’s home preventing her from mortgaging or selling it.

In order to successfully argue that he should become Mrs. Batiuk’s committee, the Public Trustee is required to produce two medical affidavits (under the former provisions of s.2 in the old Patients Property Act, now contained within s. 3 of the Patients Property Act, RSBC 1996, c 349 “PPA”) setting out that, in the opinion of the affiant, the subject of the application (here, Mrs. Batiuk) is incapable of managing him or herself because of “mental infirmity arising from disease, age or otherwise” or the misuse of recreational drugs.

Battle of Medical Affidavit Evidence

As Madam Justice Allan put it in her decision, most committeeship applications are supported by medical affidavits that are “brief and desultory.” Not in this case: no fewer than seven medical experts became involved and numerous medical affidavits were filed with the court as evidence.

The descriptions of Mrs. Batiuk in those medical affidavits ranged from: “mental infirmity due to chronic paranoid schizophrenia” and “[Mrs. Batiuk has] cerebrovascular brain disease particularly evidenced by cognitive impairment including impaired orientation, attention, memory and language” all the way to “[Mrs. Batiuk] definitely knows what she wants, is mentally competent…is quite capable of mentally making the decision to appoint [the niece] to manage her financial affairs...” and “no indication of chronic paranoid schizophrenia…”

The judge addressed the question of the threshold of proof required to establish, as required by the PPA, that Mrs. Batiuk was incapable of managing her affairs. She commented as follows (at paragraph 58):

While the threshold appears to be a low one, in the sense that s.2(4) only requires the “opinion” of 2 medical practitioners…the Court must be “satisfied” [by those affidavits]…Drs. Horricks. James and Donnelly have expressed their “opinion” that Mrs. Batiuk lacks capacity [but] I am not “satisfied” with that conclusion. Each of their opinions is outdated, incomplete and flawed…”

In the result, Madam Justice Allan found Mrs. Batiuk to be capable of managing her own affairs. In the battle of the affidavits, she found that the affidavit evidence that supported Mrs. Batiuk’s competencies were more current, and were sworn by medical experts who had spent more time with her. She further suggested that some of the conclusions drawn by the medical experts in the affidavit evidence which she rejected were based on collateral evidence; in other words, those doctors had formed opinions based on information supplied to them by third parties rather than exclusively by direct examination and observation. The context of the medical interviews was also important. For example, it was established at trial that Mrs. Batiuk herself was aware, when being interviewed by doctors working with the Public Trustee, that she could be declared legally incapable if she “failed” the interview. It was accepted by the judge that this caused Mrs. Batiuk extreme stress and caused her performance to deteriorate.

Importance of Context-Sensitive Assessments

I think this case confirms that it is important, legally, to ensure that clients are given the opportunity to perform as well as they can during medical examinations, and that the context of a medical examination can very significantly alter the weight given to any affidavit evidence sworn as a result of the interview. This is what is meant by a “context-sensitive assessment”, a term used, but not really described, in my previous post, The Capability Continuum.

Many times, we lawyers, as well as other professionals, speak about the capacity of our clients as a binary proposition: capacity is something that our clients either have or lack. However, the law with respect to capacity has evolved in recent years to an understanding that questions of capacity must be considered in a more subtle, nuanced and contextual manner, and that a simple yes or no answer to questions of capacity may not suffice. The importance of this evolution of the law is that it tends towards the empowerment of those who need assistance.

Three relatively recent B.C. cases discuss the possibility that a person can have capacity to make some decisions, even while they do not have the capacity to manage their own affairs. I am referring to Fraser v Fraser, 2008 BCSC 1733 (CanLII), 2008 BCSC 1733, Re Palamarek, 2011 BCSC 563 (CanLII), 2011 BCSC 563 and Finlay v Finlay, 1997 CanLII 2313 (BC SC), 1997 CanLII 2313 (BC SC). The judgment in Re Palamarek was released on May 3, 2011, and can thus be said to be the latest word on the topic to emanate from the British Columbia judiciary. In this case, the Honourable Mr. Justice Harris opined that under the Patients Property Act a finding of lack of capacity can be made and yet “the patient is still not precluded from choosing a committee so long as they still have capacity to express their wishes.” In other words, the fact that one requires help in managing one’s affairs does not mean that one is precluded from having a say in who gives such help.

The view was previously articulated in an earlier case, Fraser v Fraser. In this judgment, the Honourable Madame Justice Bruce stated that “there is a qualitative difference between managing one’s business affairs and attending to one’s daily care needs and choosing who among family members one wishes to have in charge of those matters. Similar to testamentary capacity, I find that patient’s awareness and understanding does not have to be at a very high level to designate a family member to be in charge of their affairs. The patient need only know what his wishes are in that regard.”

Finlay v Finlay, makes the further interesting point that, even where the incapacitated person’s preference is based on a delusion, if that preference is strongly held and likely to cause the person psychological distress if ignored, then that preference will be respected by the courts. In this case, an elderly man who had been married for 50 years had a very strong aversion to his wife being made the committee of the estate. Although the court could find no rational basis for his dislike of his wife, and also despite the fact that the alternative to his wife was the Public Guardian and Trustee, which would cost his estate significantly more to manage than would his wife, the courts respected his wishes and refused to make his wife committee of his estate. This case can be looked at either as a finding that he had the capacity to choose a committee or a decision that the expressed wishes of those who need help managing their affairs should be respected if possible.

Also of interest is a publication put out by UBC Care for Elders entitled “Incapability Assessment Module” drafted by a ten person interdisciplinary panel under the leadership of Dr. Martha Donnelly. Dr. Donnelly states:

People with dementia and other conditions that may interfere with their decision-making abilities, can usually still proactively participate in their own care. Their ideas about their own care do not always correspond with what others—including their family member —may think is best for them. This does not mean that they are wrong! Moreover, just because the person is unable to make some decisions, does not mean that they are unable to make all decisions.

Dr. Donnelly states further that the likelihood of two assessors reaching the same decision about a person’s incapability in situations that are not clear cut is often only somewhat less than chance.

Likewise, it is the current trend in medicine and in law to ask, not does the person have capacity, but rather, do they have the capacity to make a decision with regard to the particular issue under scrutiny.

The Public Guardian and Trustee of BC has weighed in on this issue with its publication, “Incapability Assessments: A review of Assessment and Screening Tools Final Report” published on April 20, 2009. This report lists the following as the trends emerging in the area of incapacity assessments:

• A move toward understanding capacity as multi-dimensional and context-specific;
• Attention to the limitations associated with a strictly cognitive understanding of capacity that currently dominates assessments of incapacity;
• A move toward a more functional approach that includes attention to executive capacity;

The importance of an assessment that is context-sensitive…

The BC Adult Abuse/Neglect Prevention Collaborative published a Provincial Strategy Document on Vulnerable Adults and Capability Issues in BC in 2009. This document was explicitly written with the idea that the provisions of Bill 29, the new Adult Guardianship and Planning Statutes Amendment Act, S.B.C. 2007, c. 34 would eventually come into force. This report contains the following information found on page 17 and is the basis for the title of my blog post:

Many modern guardianship and substitute decision-making systems reject a binary all-or-nothing approach to capability in favour of the notion that there are shades of grey to capability: for the purpose of this study we call this approach the capability continuum. The premise underlying the notion of a continuum is the idea that incapability may be specific to circumstances and particular categories of decision-making.

The number of legal issues that require a lawyer to assess the capacity of their clients are many and varied. Here are just a few examples:

• can the client give instructions;
• sign a contract;
• make a will;
• designate a representative for personal and health care under s. 9, or under s. 7 of the Representation Agreement Act;
• nominate an attorney;
• exercise a power of appointment under a will or trust;
• act as a personal representative;
• act as a Monitor;
• nominate a committee of their person and/or their estate; or
• on a more basic level, can they manage their own financial and/or personal affairs?

Perhaps as the law evolves we will come to have a variety of terms that describe where our client sits on the capability continuum, rather than condensing a complex issue into a yes or no proposition. On that note, I plan to write again on this topic and look more closely at the suggestion made by the PGT, that there are limitations with a strictly cognitive understanding of capacity, and hopefully try to elucidate what the alternatives might look like.