Citation: B.M. v. S.M., 2013 NSSC 128
Date: 20130424
Docket: SYDJC: 411474
Registry: Sydney
Between:
B. M.
Plaintiff
and
S. M.
Defendant
|
Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Justice Frank C. Edwards
Heard: April 9, 2013 in Sydney, Nova Scotia
Written Decision: April 24, 2013
Counsel: Elizabeth Cusack, for the plaintiff
Nash Brogan, for the defendant
By the Court:
[1] Introduction: The Applicant, B. M. (B.) is applying for guardianship of the person of her husband, S. M.. As such, B. would be entitled to make personal decisions for S., when decisions are required, regarding, for example, his medical treatment and personal care. As guardian of S.’s person, B. would have the right to be kept fully informed regarding all personal and medical information related to S.. While she would have the right to be kept advised of all details of his estate, including its finances, she would not have the right to manage the estate nor to make decisions re the estates’ finances.
[2] B. is content to have the Public Trustee appointed guardian of S.’s estate. In fact, the Public Trustee is currently acting as the financial trustee of S.’s estate pursuant to section 13 of the Adult Protection Act. The Public Trustee has also indicated its willingness to continue to manage S.’s financial affairs and, to that end, has consented to its appointment as guardian of S.’s estate.
[3] The sole issue in this case is whether it is in S.’s best interests that B. be appointed guardian of S.’s person. The application is opposed by S.’s daughter, J. H. (J.). J. would prefer that she be appointed S.’s guardian. There is no issue re the necessity of appointing a guardian of S.’s person. S. “lacks the capacity to make personal care and financial decisions (as he is) in the middle stage of dementia of the Alzheimer’s type.” (Dr. Paul Creighton, affidavit January 11, 2013, para. 9).
[4] Background: B. and S. lived together (except for 1 month in April, 2012) from the date of their marriage on May [...], 2001 until August 24, 2012. Prior to their marriage they signed a prenuptial agreement (also dated May [...], 2001) which provides that “...if a dissolution of the relationship occurs for any reason including death,” B. will make no claim against S.’s listed assets.
[5] S. has two adult children from a previous marriage, namely, the abovementioned J. H., and a son, S. M.. They and the Applicant do not get along.
[6] According to B., by April, 2012, S. “was clearly unwell and appeared to be confused and who had been exhibiting serious signs of confusion for well over a year, although he has been showing confusion for about 5 years” (B.’s affidavit, October 15, 2012, para. 12).
[7] B. made her first referral to Adult Protection in May, 2012. In April 2012, B. had left the home because S.... “had become unmanageable, refusing to take medications, picking at his skin and injuring himself, becoming angry and paranoid.” (B., April 05, 2013 para. 7).
[8] J. disputes that B. left due to frustration and fear. In J.’s view, B. left because S. had told her that he was turning his valuable fishing license over to his son. (J. para. 28). J. believes that B. abandoned her father in April 2012 and again in August, 2012. J. feels that B.’s motivation now is purely financial, “to advance her claim for spousal support...” (J. para. 25).
[9] When B. returned home in May 2012, she found that she was locked out of the property and “a tenant has taken it over through the efforts of J. H., now claiming to be the owner” (B. January 25, 2013 para. 9). B. claims she has a life interest in this property which S. deeded to J. in May 2012.
[10] In any event, in May 2012, B. and S. resumed cohabitation which continued until August 24, 2012, when B. again left. B. says she left “...because my husband was extremely agitated and unmanageable, there was evidence of trespass inside the home and I was stressed by several months of trying to get my husband proper medical care because he was not cooperating with a prescribed medication treatment that I was asked to adjust on my own by Dr. Bulajic. “(B., April 5, 2013 para. 17). B. goes on to say that she called Adult Protection and left messages on the answering machines of J. and S.’s sister to ensure that they would check on S..
[11] When Adult Protection determined that S. had to be taken into care, B. declined to act as his decision maker. J. became decision maker and continued in that role until termination of the Adult Protection Order in February, 2013. By that time S. had been admitted into a special care facility known as Harbourstone Enhanced Care (HEC). S. continues to reside there and,
by all accounts, is receiving excellent care. J. fears that B. will remove S. from HEC if she is appointed guardian. B. denies that she has any such intention.
[12] B. visits her husband for several hours a day every day. B. also takes S. for motor vehicle drives outside HEC on a regular basis. Between December, 2012 and March, 2013, B. was unable to do so because of instructions left with HEC by J..
[13] Analysis: I have no doubt but that it is in S.’s best interests that B. be appointed guardian of his person. I am satisfied that his continued contact with B. is beneficial to S.. I am satisfied that B.’s primary consideration is S.’s welfare. There has been no dissolution of the relationship between B. and S.. There have been two temporary and understandable separations. If B. is interested in ensuring that she has continued financial support from S.’s estate, I do not blame her. That is no less than she would expect had S. not become incapacitated.
[14] I do not minimize J.’s concerns. I am satisfied that she is acting in what she perceives to be her father’s best interests. But I am also satisfied that, perhaps because of past tensions between them, J. is unduly critical of B.’s actions.
[15] One has to consider that it was B., not J., who lived with S. twenty-four hours a day, seven days a week in very stressful conditions. I have no doubt that when B. left in April 2012, and again in August, 2012, she was stressed and frustrated beyond what many people could endure. The unrelenting stress of dealing with S. must have been overwhelming. Yet, B. still had the presence of mind to make calls to Adult Protection, as well as to J., to ensure that S. was not left on his own.
[16] In these circumstances, it would be unfair to penalize B. for initially declining to be S.’s decision maker. I am sure that her refusal was the product of both a lack of understanding of the consequences and her utter frustration with the whole situation.
[17] Conclusion: I am appointing B. guardian of S.’s person and the Public Trustee guardian of S.’s estate. I am further ordering that S. shall remain a resident of HEC unless this court in the future orders otherwise.
J.
Sydney, Nova Scotia