J. Q.B. A.D. 1996 148 J.C.E. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF ESTEVAN IN THE MATTER OF AN APPLICATION FOR AN ORDER FOR THE APPOINTMENT OF GUARDIAN FOR SELWYN ROY HAND PURSUANT TO THE DEPENDENT ADULTS ACT Beaty Beaubier for the Applicant, Ronald Cathcart Tim McGeough for Selwyn Roy Hand JUDGMENT ALLBRIGHT J. April 18, 1997 By virtue of a petition dated August 14, 1996, theapplicant herein seeks the appointment of the said RonaldMervin Cathcart as property guardian for Selwyn Hand, pursuantto section 19 of The Dependent Adults Act (Saskatchewan). The proposed dependent adult, Selwyn Roy Hand resists that application. The following judgment is my resolution of the application and related matters. BACKGROUND The proposed dependent adult, Selwyn Roy Hand, was born on the 4th day of August, 1920 and at this time is seventy-six years of age. Mr. Hand lived for many years in the Biggar area of Saskatchewan and in 1994 moved to Estevan, where he has established relationship with Mrs. Annie Minto Essex. Mr. Cathcart is the nephew of Mr. Hand and while the application is brought in his name, it is in broader sense an application on behalf of Selwyn Roy Hand's extended family. Mr. Hand has never been married and has no children. Mr. Cathcart and other family members, including Mr. Hand's brother, assert that Selwyn Hand has throughout his entire life been mentally challenged. Their suggestion is that he has never been able to prudently handle money or property and that without their intervention he would not be able to effectively manage his assets and property in his own best interests and that some management or third party regulation of those assets is required in his best interest. Mr. Cathcart further suggests that, "Mr. Hand is gullible and is quite easy to talk into practically anything and could well be easily deprived of his assets". During his active working life, Mr. Hand worked as labourer for the Canadian National Railway and as well worked from time to time as farmhand. He apparently stopped working at approximately fifty-five years of age. In the mid-1940's, Mr. Hand's father died and left him 400 acres of farmland, legally described as follows: the West Half of the North East Quarter of section and the South East and South West Quarters of Section 17, Township 34, Range 11, West of the Third Meridian, Saskatchewan 80 acres as to the West Half of the North East Quarter and 10 acres as to each of the South East and South West Quarters. MINES AND MINERALS ACCEPTED by 4120 as to the South East and South West Quarters of Section 17 and CD 3814 as to the West Half of the North East Quarter of Section 8. Initially, in 1949, this land was registered directly in the name of Selwyn Roy Hand. Because of concerns over the ability of Mr. Hand to deal with his property, in 1959, Mr. Hand was persuaded by family members to transfer title to the land to his brothers, Robert Emerson Hand and Garnet C. Hand. It is acknowledged by all interested persons that Robert Emerson Hand and Garnet C. Hand held the land in trust solely for the benefit of Selwyn Hand. Garnet C. Hand died in 1972. Shortly before the death of Garnet C. Hand, trust agreement appears to have been signed by Garnet C. Hand, Emerson Hand and Selwyn Hand. Searches have made for copies of that agreement and supporting affidavits, but no copies have been found. statement of account dated September 16, 1971 from Saskatoon law firm references such an agreement however. In 1988, title to the relevant property was transferred into the names of the applicant, Ronald Mervin Cathcart and his cousin, Charles Robert Hand, both being nephews of Selwyn Hand. The purpose of that transfer was to put in place trustees of the title who were younger than Mr. Hand. In July, 1994, Charles Robert Hand passed away and as of July 5, 1995 the applicant, Ronald Mervin Cathcart, became the sole remaining registered owner of the land and remains so to this time. Over the years, as part of the "trust arrangement", Mr. Hand received rental income from the land, the amount of that income varying from time to time. At the present time there are some significant rental arrears for the farmland owing to Mr. Hand from another one of his nephews who has been the long-term tenant. As noted, in 1994 Mr. Hand became acquainted with Annie Minto Essex and formed relationship with her. At that time he began requesting that he be able to manage his own affairs and deal with his own assets. Up until approximately March of 1995, Mr. Hand was receiving $500.00 per month out of bank account which dispersed rental payments from the land. In addition, he would receive his pension cheques from the Canada Pension Plan and Old Age Security. In approximately March, 1995, all of the accrued cash assets in the bank account and other investments which had been accumulated over number of years from additional land rentals were transferred to Mr. Hand in Estevan for his own purposes. These funds approximated $36,000.00. In December, 1994 Mr. Hand and Mrs. Essex purchased home in Estevan as joint tenants, securing mortgage against the property in the approximate amount of $34,000.00. The funds received by Mr. Hand, as noted above, were used to retire the mortgage on that property in February, 1996. In February, 1996, in an attempt to obtain title and control to his land, Mr. Hand brought an application by way of Notice of Motion, to have the land registered in his name. On July 11, 1996, Madam Justice Dawson ruled as follows: Selwyn Hand (the applicant) brings an application for an [sic] Vesting Order pursuant to section 87 of The Land Titles Act vesting title to the land described in Certificate of Title No. 95S24264 in his name, or in the alternative for an order pursuant to Section 34 of The Trustees Act vesting the property in his name. should note that the application was originally returnable on March 12, 1996 and was adjourned several times at the request of the respondent. The applicant received the land in question in the 1940's as beneficiary under his father's estate. In 1951, the applicant transferred the farmland to some family members. The land was transferred to these family members to be held in trust for the applicant. The purpose of the arrangement was to preserve the farm and its income for the benefit of the applicant who was apparently careless with his property and affairs. If there was trust agreement in writing at the time of this transfer, no copy of it has been located. In 1971 it appears as if Trust Agreement was prepared, but again no copy of the agreement can be located. Over the years, the land was transferred from the original trustees to various other family members. At present the land is registered in the name of Ronald Mervin Cathcart, the respondent, who is the nephew of the applicant. The respondent acknowledges that he holds the land in trust for the applicant. The respondent objects to the application because he is of the opinion that the applicant is incapable of prudently handling money or property, is functionally illiterate and is gullible. The respondent is concerned that if the land is transferred to the applicant he will lose the benefit of the land in very short time. The applicant indicates that he previously had difficulty managing his affairs, but attributes those difficulties to severe drinking problem. He indicates that he quit drinking six years ago and has not drank since that time. The applicant has never been declared incompetent to manage his affairs. He voluntarily transferred the land and voluntarily continued to allow the arrangement to continue. There is no dispute amongst the parties that he is the beneficial owner. In the circumstances, although the respondent appears to be acting out of concern for the applicant, the applicant is entitled to manage his property, unless he is not competent to do so. As there are no facts in dispute in the matter before me, and there is no other reasonably convenient remedy, and as there are no other parties affected by this application and by reason of the exceptional circumstances of the application, am prepared to grant vesting order pursuant to section 87 of The Land Titles Act directing the Registrar for the Saskatoon Land Registration Distrcit [sic] to cancel Certificat [sic] of Title No 95S24264 in the name of Ronald Mervin Cathcart and issue new title for this land in the name of Selwyn Hand. However, as the respondent is concerned that the applicant is not competent to manage his affairs, the vesting order will be postponed for 45 days to allow the respondent to bring an application returnable within the 45 days, should he so desire, for the appointment of property guardian pursuant to The Dependant's [sic] Adult Act. In the event that such an application for the appointment of property guardian is commenced and returnable within the 45 days, the vesting Order shall be stayed until the resolution of that application. Further in the event that such an application is commenced, this file must be brought to the attention of the judge hearing the matter. In the event that no such application for the appointment of property guardian for the applicant is brought, the vesting order shall issue on the 46th day after the date of this decision. The within application by Mr. Cathcart followed from the contingency reflected in the order of Madam Justice Dawson. As part of the relief originally sought through the petition, in addition to requesting the appointment of property guardian, the applicant also sought an order requiring Selwyn Hand to attend before and be evaluated by medical practitioner for the purposes of the application. At an earlier date, declined to make the requested order for an independent medical examination. In response to this application, Mr. Hand indicates that for number of years he had personal drinking problem that did cause him difficulty in handling his affairs and he recognizes the prudence of the family having assisted him by controlling the land and providing him with regular income. He ceased drinking approximately six years ago and believes that he is in position to adequately manage his own affairs. He wishes to have the property sold with the sale proceeds being available to him. He believes that he is in position to prudently deal with his assets although he recognizes that some independent assistance in the handling of his affairs and the management of his assets would be in his best interest. Mr. Hand was assessed by Dr. Donald MacRae, psychiatrist practising at Carlyle, Saskatchewan, on October 28, 1996. His assessment of Mr. Hand reflects the relevant medical condition of Mr. Hand from his perspective. His observations are succinctly embodied in the medical report of October 28, 1996. Those observations were in essence re- iterated during his oral testimony before me, and are as follows: Many thanks for referring Mr. Hand whom saw October 28, at which time diagnosed him as substance induced persisting amnestic disorder. Many thanks for your letter dated September 20, it was very helpful. Mr. Hand is 76 year old gentleman, presently living common-law (4 years) with Annie Essex. He is of irish [sic]origin, Anglican religion, non-active and retired former CNCP worker who used to live at Biggar. He presently resides at 13- 26th[sic] St. Estevan with Annie. Mr. Hand states that he has never had any previous psychiatric attention but stated that the reason he was here was because "my brother and sister think need to see one". He stated that he is trying to get his land back and they think that I'm nuts and crazy. He said have lawyer and he could only remember his first name which is Tim but on interview with Mrs. Essex and her daughter, who accompanied him, the name of the lawyer is Tim McGeough out of Estevan. Mr. Hand maintained that he had no trouble with his memory and that he has felt very good both physically and mentally lately. On mental status examination he presented as rather short heavy set white haired man who was wearing cap, he is 5'5" tall and wearing glasses. He verbalized quite well. His mood and affect seem appropriate. He said his sleeping he sometimes has problems with and says he is nervous as his right hand shakes and he says goes to sleep on him. He says he sleeps very well until or in the morning and then seems to be awake. His appetite is good, weight 150 pounds, he felt that was the most he had weighed and the lowest was 140. When questioned about suicidal ideation he said he gets very down and was until he met his present common-law relationship Annie. Before he never thought about taking his own life. On testing his memory and during mini mental status he scored 25 out of 30 which suggested some problems with his long-term memory but his immediate recall is good. He knew the date, time, season, he was orientated to place, and could recall the name of three objects five minutes after asked him to do so. He had difficulty with serial 7's or spelling "world" backwards. He had some difficulty with reproducing an intersecting pentagon. He was aware of his financial matters and was aware that he was getting money from his farm until 1994 and that he owns 400 acres which he said was left to him by his father. He was aware that his eldest brother who died or years ago, Percy, son Harold, was farming. He stated that when he was drinking he got his family to take over the land so he wouldn't lose it due to his drinking. He maintains that he has not been drinking for over four years. He said there was alcoholism in he [sic] family with brother Percy and Emerson drinking. There was no evidence of any hallucinations or delusions. His insight and judgment felt were moderately good. In his past history which he gave me himself he was born in Lenny South of Perdue, attended country school there until grade 6, quit school he said, he was not good in arithmetic, stayed at home on the farm and then worked in the CN until he became sick he said in 1955, had heart trouble and he said he got pension then. He tried to do some farming South of Linnie on the 400 acres. felt there was some "blanks" in his long-term memory and this is why have made diagnosis likely substance induced persisting amnestic disorder from his original overuse of alcohol. He has never married but since 1994 he has lived common-law with Annie Essex. He did have another long-term relationship in which he lived with another lady until she died. He could not remember her name but she was First Nations lady. He has been living with Annie since 1994. Past physical health reveals that he has had an T&A, appendectomy he thinks. He has had heart problems and he presently takes Ditropacs b.i.d., Novasen 3-25 mgs. tablets once day, Vasotec (Analopril) 20 mgs. o.d., Lenedril 10 mgs. (Felodipine) b.i.d. and Vasertic o.d.. He said he has been in hospital for his heart but he didn't think it was this year. He thought he was in hospital in Saskatoon and Biggar. He describes an operation on his neck which may have been an endarterectomy. He said his left hand used to get quite numb but it is better since he had the surgery. He did not think there was any psychiatric disorder in his family. In his own family he said his father, James, died in 1940 at the age of 70. He said his relationship was good and that he was good father. His mother he said he did not know her maiden name, he thought she died in 1921. He would just be baby then. He said his older sister cared for him. Siblings include Percy, married to Irene, they had three children, he died or years ago, lives on the farm south of Lennie: Ruggles, who died four years ago, lived at Birkdale; Ken who died three to four years ago, lived at Star City; Bert, dead, lived in Manitoba; Emerson is married to Edith, they had one boy who died in 1994, they are living in Purdue; Margery, married to Leonard Castgar, apparently is widow, she has three children, Wayne in Alberta, Ronald married to Mary in Saskatoon and Lloyd, married in Saskatoon. It is Mr. Hand's nephew, Ronald and his mother that seems to be pushing the question of Mr. Hand's competency. He also has sister, Harriette, who died, lived at Feudal, and Garnet who is apparently live and living in Purdue. Psychosexual development reveals normal milestones. He stated that he did live with another lady for while. He is not sexually active at the moment. He says he does not drink, he said he used to drink quite lot, he said he did get picked up for drinking and driving and lost his driver's license so he quit driving in 1994. He said there is alcoholism in the family, Percy, and Emerson had problems. He said he went to A.A. and still goes on Monday nights. He does not smoke, he used to about or years ago. He said at the present time his finances are alright but he simply gets pension of $724.72, part of which is the old age pension and part is the CPP. He said he was getting money from the farm until 1994. He says he has been fighting for his farm since that time but states that his nephew, Ron Cathgart [sic] says it is in his name and in Ron's name and not in Selwyn's and that is the problem he is having now. He would apparently like to sell the farm and perhaps travel with his present common-law relationships.[sic] The diagnosis is substance induced persisting amnestic disorder. felt that there was some problems with his long-term memory which are probably related to his long-term use of alcohol. However, his present mental status in my opinion is sound, his immediate and recent memory are intact, and his orientation is correct and his judgment and reasoning are in order. He would seem to be quite competent to manage his own affairs and is aware of the nature of the bounty. Many thanks for this most interesting referral. It is the extended position of the applicant, as expressed to me at the hearing of this application, that while Mr. Cathcart believes that the appointment of property guardian is in the best interest of Mr. Hand, Mr. Cathcart and other family members would be prepared to see the Public Trustee of Saskatchewan designated as the property guardian rather than family member. RELEVANT LAW As Wright, J. noted in Kemp (1991), 1991 CanLII 7843 (SK QB), 89 Sask. R. 249, at p. 252: "The deprivation of person's liberty, independence and control of his or her affairs, is such serious matter, that the proof of dependency must be clear." This is most appropriate observation. Section 18 of The Dependent Adults Act S.S.1989-90, c.D-25.1 provides: 18(1) Where an application is made for an order pursuant to this Part, the court shall inquire into: (a) the extent to which the person with respect to whom the application is made is in need of property guardian, and for that purpose: (i) may consider the physical, psychological, emotional, social, health, residential, vocational and other needs of that person; and (ii) shall consider the extent, nature and complexity of that person's estate, that person's economic needs, and the existence of any alternative means of managing the estate; and (b) the wishes of the person to the extent that the court considers appropriate having regard to the capacity of that person. (4) The court may make an order pursuant to this Part if the court is satisfied based on the evidence submitted to it that the person with respect to whom the application is made is: (a) an adult, whose ability to: (i) receive and evaluate information effectively; or (ii) communicate decisions; is impaired to such an extent that the person lacks the capacity to make reasonable judgments with respect to matters relating to all or any of his or her estate; and (b) in need of property guardian. (5) The court shall not make an order pursuant to this Part unless it is satisfied that it is in the best interests of the person with respect to whom the application is made to grant the order. Section 41(6) is also relevant to this matter. It provides as 41(6) If, in the opinion of the court: (a) the dependent adult is still in need of property guardian; and (b) no application for another property guardianship order will be made; the court may appoint the public trustee as the property guardian for the dependent adult. The Public Trustee Act S.S. 1983, c.P-43.1 is also relevent to my determination. Section 29 under the heading "PROPERTY OF DEPENDENT ADULTS" provides as follows: 29(1) The public trustee shall act as the property guardian of dependent adult when: (a) certificate of incompetence has been issued under The Mentally Disordered Persons Act; and (b) an acknowledgement to act in the form prescribed in the regulations has been signed under seal by the public trustee; with respect to that person. (2) Where no person applies or appears to be interested in making an application pursuant to The Dependent Adults Act to be appointed property guardian of person in respect of whom clause (1)(a) applies, the public trustee: (a) in the case of an estate worth less than $1,000 that requires administering, may sign and seal an acknowledgment to act; or (b) in the case of an estate worth $1,000 or more that requires administering, shall sign and seal an acknowledgment to act. Where: (a) person has applied pursuant to The Dependent Adults Act for an order appointing him as property guardian of dependent adult and it appears to the court that it would not be in the best interests of the dependent adult to appoint the applicant as property guardian; or (b) property guardian of dependent adult appointed pursuant to The Dependent Adults Act resigns or is removed; the court may, with the consent of the public trustee, make an order appointing the public trustee as property guardian. (4) Repealed. 1989-90, c.18,s.10. (5) An order appointing the public trustee as property guardian, or an acknowledgment to act mentioned in this section signed under seal by the public trustee, shall not preclude any other person from applying to the court pursuant to The Dependent Adults Act to be substituted as property guardian in place of the public trustee. (6) Where the public trustee is appointed as property guardian on an application: (a) mentioned in subsection (3); or (b) pursuant to The Dependent Adults Act; the public trustee's powers and duties as property guardian are the powers and duties given to the public trustee by this Act. Following upon the appointment of the Public Trustee in this context, sections 30 and 31 provide specific powers to the public trustee in his capacity as property guardian of dependent adult. CONCLUSION am appreciative of the efforts of both Mr. McGeough and Mr. Beaubier in responding to the Court's inclination in dealing with this matter. Their inquiries as to the potential involvement of the Public Trustee have been most helpful and their agreement on the principle of resolving this matter is also appreciated. am of the opinion that Mr. Hand is capable of managing significant portion of his business affairs and matters that relate to his estate and property. I believe, however, that he does require somesignificant independent assistance in the management of anestate in the nature of that which is represented by the landwhich is currently held for his benefit. He has expressed to me desire to have the land sold and the proceeds made available to him for various purposes. find his suggestions and proposals to be reasonable ones and at this stage financially modest. Again, believe that he is capable of managing in fundamental fashion his property, however it is acknowledged by him through Mr. McGeough that some assistance would be required. In applying the spirit embodied in section 18 of The Dependent Adults Act, have concluded that he requires some assistance to augment his own judgment with respect to his estate and that overall he is in need of property guardian to provide measure of assistance to him. am also of the view that the appropriate property guardian is the Public Trustee for the Province of Saskatchewan. Accordingly, I determine that Mr. Hand meets the criteria setforth in section 18 for the appointment of a property guardianand I hereby designate the Public Trustee to be that propertyguardian. However, as I have indicated earlier, I believe thatMr. Hand is capable of managing some of his affairs and I amfurther of the view that at this stage in his life, the planswhich he proposes are reasonable and I believe that some ofthe proceeds from the land sale should be placed directly intohis control to pursue his financial commitments and hisdreams, with the balance being placed in the hands of thePublic Trustee as his property guardian to appropriatelyadminister in his longer term best interests. Therefore, am of the view that the land should firstly be vested directly in the name of Selwyn Roy Hand. return to the fiat of Madam Justice Dawson of July 11, 1996 and lift the conditional stay which she had put in place pending the resolution of the within application. Accordingly, pursuant to her order, there shall be Vesting Order pursuant to section 87 of The Land Titles Act, directing the Registrar for the Saskatoon Land Registration District to cancel Certificate of Title No. 95S24264 in the name of Ronald Mervin Cathcart and issue new Title for this land in the name of Selwyn Roy Hand. Mr. Hand may then choose to deal with the land either by way of leasing the property out or as he had indicated to the Court, sell the land to obtain the proceeds from the sale. In the event that Mr. Hand chooses to sell the land so vested in his name, now propose to deal with the proceeds from that sale. The applicant, Mr. Cathcart, on his own behalf and on behalf of the family members, indicates that they have expended significant amount of monies in dealing with this matter which they assert has been for the benefit of Mr. Hand. They request payment of those costs from the proceeds of the sale. Mr. McGeough on behalf of Mr. Hand, indicates that he understands portion of the cost being covered, but only portion in light of the resistance which he ascribes to Mr. Cathcart and the family in reaching resolution initially, such as is embodied in this judgment. am of the view that some of the costs of Mr. Cathcart should be reimbursed in recognition of the interests of the family in maintaining and preserving the asset for Mr. Hand. am not however persuaded that the entire amount of the costs should be reimbursed. Accordingly, fix the sum of $7,000.00 to be paid to the applicant herein as portion of the costs of these proceedings. This amount is to be paid in the event that Mr. Hand selects the option of selling his land and the land is subsequently sold. further direct that, for the purposes of ensuring that an adequate return is received for the sale of the land, direct that any proposed sale is subject to the approval of this Court upon the application of Mr. Hand. Such application may be made either to me or to another judge of this Court. Upon approval of proposed sale, and upon such approved sale coming to fruition, direct that from the proceeds there be deducted the sum of $7,000.00 which have allotted to Mr. Cathcart, and all other reasonable expenses associated with such sale. Thereafter, one half of the proceeds are to be provided directly to Mr. Hand to be dealt with by him as he chooses, with the remaining half of the proceeds being placed in the hands of Mr. Hand's property guardian, The Public Trustee of Saskatchewan. The Public Trustee will then administer such funds in accordance with the normal powers and procedures of his office, acting in the best interests of Mr. Hand. The parties have leave to apply to me for further and other incidental direction in pursuance of this judgment. ALLBRIGHT J.
The applicant sought to be appointed as property guardian for his uncle pursuant to s19 of the Dependent Adults Act. The proposed dependent adult resisted the application and attributed his previous difficulty managing his affairs to a severe drinking problem but indicated that he had not been drinking for six years. The uncle had never been declared incompetent to manage his affairs. He voluntarily transferred the land left to him by his father and had allowed the trust arrangement to continue since 1951. Over the years, the land was transferred from the original trustees to various other family members and was presently registered in the name of the applicant nephew. There was no dispute that the uncle was the beneficial owner.HELD: The land was vested directly in the name of Selwyn Hand. The conditional stay in place pending the resolution of this application for the appointment of a property guardian was lifted. 1)The proposed dependent adult was capable of managing a significant portion of his business affairs and matters relating to his estate and property. However he required significant independent assistance in the management of the land held for his benefit. His suggestions and proposal to sell the land and travel were reasonable and financially modest. 2)The criteria set forth in s18 for the appointment of a property guardian was met and the Public Trustee was appointed to administer the balance of the proceeds from the land sale remaining after the uncle pursued his financial commitments and his dreams.  3)Costs in the amount of $7,000 were to be paid to the applicant in the event the uncle chose to sell his land. 4)Any proposed sale would be subject to the approval of the Court upon application of Hand. One half of the proceeds were to be provided directly to Hand to be dealt with as he chooses and the remaining half were to be administered by the Public Trustee in his longer term best interests according to the normal powers and procedures of that office.