Protect Your Elderly Parents. Lynne Butler
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will need an affidavit, though the law does not state from whom you should get the affidavit. As every other jurisdiction specifically states that this evidence must be given by a medical doctor it would seem logical that a medical doctor would be the best choice in this case as well. As there is no specific form requested by the legislation, you will follow the general form for affidavits under the Rules of Court. The wording given in the forms that accompany this book is suggested wording only and is not mandated by the Rules of Court. You may change the wording to suit your own specific set of circumstances.
Northwest Territories and Nunavut
You will need a medical report in Form 1: Assessment Report. The form must be completed by a medical doctor, a psychologist, or a person who is assigned the responsibility of preparing the report by the Office of the Public Guardian.
Nova Scotia
You will need affidavits from two medical doctors. As there is no specific form requested by the legislation, you will follow the general form for affidavits under the Rules of Court. The wording given in the forms that accompany this book is suggested wording only and is not mandated by the Rules of Court. You may change the wording to suit your own specific set of circumstances.
Ontario
You will need two assessments. The assessments must be completed by a medical doctor, psychologist, social worker, occupational therapist, or registered nurse. The form needed will depend on the application being made. Form A is needed for the appointment of a guardian for property (equivalent to a trustee) and Form B is needed for the appointment of a guardian of the person.
Prince Edward Island
You will need two assessments in Form 13: Certificate of Incapacity to Manage Personal Affairs, both of which must be signed by medical doctors.
Saskatchewan
You will need two medical reports, both in Form J. You can use more than two reports if that is appropriate. The forms may be completed by a medical doctor, psychologist, psychiatric nurse, registered nurse, occupational therapist, or speech-language pathologist.
Yukon
You will need one Incapability Assessment Report (Form 6), which must be completed by a medical doctor, registered nurse, psychologist, or occupational therapist.
4.1 The best medical evidence
When obtaining any doctor’s, nurse’s, or psychologist’s report it is best to try to get the report from a professional who has known the dependent adult for some time or who is currently treating the dependent adult. This is because you want to get the most accurate report possible — one that will neither exaggerate the dependent adult’s problems nor minimize them. A lot of people will be relying on these reports for many years and accuracy is essential. An elderly relative that is taken, perhaps unwillingly, to a stranger for examination will feel stress, apprehension, and possibly even disorientation. He or she will therefore not be functioning at his or her best and the doctor may get a false picture of the patient’s condition. This simply is not fair to the dependent adult and you should make every effort to involve a doctor with whom the dependent adult is already familiar.
In addition, in a short visit a doctor may make an assessment based on an unfamiliar patient’s performance without being made aware that the patient normally uses a hearing aid, wears glasses, or relies on a language interpreter. Again, in this situation the doctor may be presented with a less than accurate picture of the patient’s ability to function and as a result the report issued by the doctor will be flawed.
In many larger centres in Canada, there are doctors available who specialize in geriatrics (i.e., health care for older people). Large cities generally have entire hospitals or hospital departments devoted to the care of older people. You should consider this kind of doctor if one is available to you. To find out whether there is a geriatric specialist in or near your town, you could ask your family doctor, call a major hospital nearby, or contact a local group concerned with elder issues, such as groups that assist families to deal with Alzheimer’s disease or a seniors’ advocacy group.
4.2 How to get the medical evidence
In parts of Canada in which there is a specific form required by law, you should print the form and take it with you to the dependent adult’s doctor, preferably on the visit at which he or she is examining the dependent adult. Explain that you wish to apply to the court to be appointed as guardian or trustee and give the doctor the form. Ask him or her to complete, sign, and date the form (all medical forms must be signed and dated by the doctor). You may not receive the form back immediately, as the doctor may wish to run some tests, see the dependent adult a second time, review the dependent adult’s medical history, or consult with another doctor. Once the medical form is returned to you, it will become part of your signed and sworn application to the court.
In the areas of Canada in which there is no specific form and the medical evidence must be supplied by way of affidavit, the process is slightly more complicated. All evidence given to the judge must be sworn to be true, either by you or by the doctor. One of two things can happen. The first is that the doctor will see the dependent adult and provide you with a written report. You will then prepare an affidavit for the doctor to sign, in which the doctor will swear that he or she prepared the report and believes it to be accurate. The report will be Exhibit ìAî to the affidavit. This affidavit will form part of the court application. Because the affidavit is evidence, the doctor will have to swear it in front of a Commissioner for Oaths, so again, you may have to come back at a later date once the doctor has had a chance to do that.
The second possibility is that the doctor will provide you not with a separate report but with an affidavit already sworn before a Commissioner for Oaths. You are more likely to have this happen if you prepare the affidavit ahead of time and take it with you when you take the dependent adult to the doctor. You can then leave the affidavit with the doctor, thereby eliminating one step from the procedure.
3
Alternatives to Applying for Court-Ordered Guardianship and Trusteeship
1. Why You Should Consider Alternatives
Before deciding to make an application to the court to be appointed as guardian and/or trustee, it is worthwhile to take the time to consider whether there are any alternatives available. Each elderly person’s situation and needs are unique, and it may be the case that those needs can be met by measures that are less expensive and less intrusive than having a guardian and trustee appointed. For example, a senior living alone might have no trouble doing his or her banking and looking after investment transactions but might have physical limitations. It might be possible to avoid the expense and trouble of having a guardian appointed for this person if someone could accompany him or her to the bank on a regular basis. Being appointed as a guardian and trustee should be a last resort.
Alternatives should be explored for two reasons. The first reason is that guardianship and trusteeship can be invasive to an individual dependent adult. The second reason is that court applications can be expensive and may deplete a modest estate unnecessarily.
In many jurisdictions in Canada, the law expressly says that no guardian or trustee can be appointed if there are alternatives available. In Saskatchewan, for example, if you are applying to be a guardian or trustee of a dependent adult, you will be required to first show the court that other, less intrusive methods of assisting the dependent adult have been tried or at least seriously considered. In the Northwest Territories, the court will not make a trusteeship order unless it is satisfied that there is no alternative available that is less restrictive of the decision-making rights of the dependent adult. Other provinces have similar wording. Not all jurisdictions