I was talking with some adult friends recently about how difficult it can be to name a guardian for minor children in the event that both parents are unable to act. Some people delay their estate planning simply because they cannot agree on who the guardian should be.   

It seems this difficult choice was approached in a new way by celebrity musician Adam Yauch, a co-founder of the American music group the Beastie Boys.  According to an article by Deborah L. Jacobs,  “Yauch’s will describes an unusual arrangement that probably grew out of compromise. If he died in a year with an even number, he appointed his parents, Noel and Frances Yauch, as the guardians, with his wife’s parents Sonam and Chuki Gangdu, as the backup if his own parents were unable to play that role. On the other hand, if he died in an odd-numbered year, the arrangement would be reversed, with her parents stepping in as guardians, and his serving as the backup.”

See the entire article here:  http://www.forbes.com/sites/deborahljacobs/2012/08/10/adam-yauchs-will-reveals-his-private-dilemma/

As I wrote in an earlier post, it is a good idea to set out guardians for minors in your will.  Depending upon the size of your estate, we also often discuss whether you wish to appoint a separate trustee for the funds the child may inherit.  You may also wish to set a staged distribution for your children, so that they don’t receive their entire inheritance when they turn 19.

See my previous post here:  http://www.bcheritagelaw.com/blog/estate-planning/why-you-need-a-appoint-a-guardian-for-your-children-and-what-you-should-consider/

I recently read an article about a dispute between the daughter of a 90 year-old crash victim, who suffered brain damage and spinal cord injuries, and his medical team.  The daughter was the man’s substitute decision maker. According to the article,  the daughter “wanted the hospital to do everything possible to treat her father and extend his life.  Her father, she said, is a Holocaust survivor who would want all steps taken to keep him alive.  But internal medicine specialist Dr. Carl van Walraven believed aggressive measures were not in the best interests of his patient, identified only as GS.”  See the whole story here:  http://www.vancouversun.com/news/Hospital+wins+right+withhold+heroic+measures+from+year+crash+victim/7025896/story.html

This is clearly a sad case and we won’t comment on the dispute.   If the patient was unable to communicate his wishes, it is an example of why we recommend that adults create and execute Representation Agreements (an “RA”), made under the Representation Agreement Act in BC.

First, by making an RA, a person gets to select for himself or herself who will be the decision maker in the event that the person is unable to make his or her own decisions.  In this case, the patient might have chosen his daughter; he might have chosen someone else.  By actively choosing someone, he might have discussed with that person what his values and beliefs were with respect to medical treatment.   He would also have had an opportunity to set out in writing in the RA what types of treatment he did and did not want from his medical team, and his philosophy towards end of life (i.e. “no heroic measures” versus a desire to have all intervention attempted.)   We frequently include specific treatments that our clients wish to have or forego – from the use of aversive stimuli to participation in experimental health care.  We recommend clients speak with their doctors to ensure they understand the medical terms and the ramifications of their choices, before the need arises.

Some people are concerned about handing over their medical decision making to someone.  In BC, there are also safeguards in the Representation Agreement Act regarding the use of the RA by the designated decision-maker.  For example, the Representation Agreement Act contains provisions regarding to objections.  In Section 30, a person can object to the Public Guardian and Trustee of BC (“PGT”)  if there is reason to believe that the “making, use or revocation of a representation agreement … is clearly inconsistent with the current wishes, values, beliefs, or best interests of the adult who made, revoked or changed the agreement (s.30(1)(c); or if “anything improper has occurred in the making, use or revocation of a representation agreement,”  (s. 30(1)(e).  There is also specific criteria for making an objection in s.30(1)(h)and (i), which provides for an objection if

 ”s.30(1)(h) a representative is

 (i)  abusing or neglecting the adult for whom the representative is acting,

 (ii)  failing to follow the instructions in the representation agreement,

 (iii)  incapable of acting as representative, or

 (iv)  otherwise failing to comply with the representation agreement or the duties of a representative,

 (i) a representative has given or proposes to give consent to health care that is not authorized by the representation agreement,”

On such an objection, the PGT will review it and has options for action, including conducting an investigation, applying to court for orders, or taking other actions considered necessary (see sections 30-34). 

The bottom line:  if you have specific views on what should happen, in the event you can’t advocate for yourself, you should consider drafting a RA.  It might save your family and friends a lot of difficulty.

95-year old Zsa Zsa Gabor, a Hollywood actress and socialite, has been the subject of a dispute between her husband and her daughter.  The daughter started a court action seeking to be her mother’s conservator (in British Columbia, one would seek to be appointed a committee under the Patients Property Act.) 

Earlier this month, the court in Los Angeles named the husband a temporary conservator of Ms. Gabor’s estate.  The daughter is allowed to visit weekly, on 24-hours notice, and will receive financial statements monthly:  see the ABC news website article here:  http://abcnews.go.com/blogs/entertainment/2012/07/zsa-zsa-gabors-husband-wins-temporary-conservatorship/

In British Columbia, the person seeking to be appointed as committee (adult guardian) will send their application to the Public Guardian and Trustee of British Columbia (the “PGT”) for review before attending in Court.  The PGT will write a letter of recommendation (or not) which is then put before the Court.  If the Court appoints a committee (an adult guardian), the Order may put the adult guardian in charge of a person’s estate or person or both. 

Sometimes protection is also ordered by the Court to safeguard the vulnerable person’s assets. When the person is appointed guardian of the estate, the Court may order security in the form of a bond, or it may place restrictions on certain assets.  For example, the Court may make an order preventing the committee from selling the home, or to have access only to the income (not the capital) on certain assets, without notifying the PGT and/or getting a further court order.

When the person is appointed committee of the vulnerable person’s estate, a copy of the order is sent to the PGT. The PGT will then send a  letter to the committee advising how frequently the person will be required to “pass their accounts,”  which means to explain in detail the person’s assets at the beginning, all expenditures, liabilities, income, and changes to the assets (i.e. rolling over a GIC when it matures.)  Frequently this is set for one year after the Court Order.  The accounts are This is done pursuant to section 10 of the Patients Property Act, which states:

10(1)(d) the committee must pass the committee’s accounts before the Public Guardian and Trustee at the times directed by the Public Guardian and Trustee, including, if the Public and Guardian Trustee requires it, a true inventory of the whole estate of the patient, stating the estimated revenue of it and setting out the debts, credits and effects of the patient to the extent they have come to the knowledge of the committee;

10(1)(e) if required by the Public Guardian and Trustee, the committee must pass the accounts before the Supreme Court in the county in which the committee was appointed committee.