B.M. v. K.S., 2015 NSSC 105

• Judge: Boudreau, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 02, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 105;(2015), 358 N.S.R.(2d) 67 (SC)

B.M. v. K.S. (2015), 358 N.S.R.(2d) 67 (SC);

    1131 A.P.R. 67

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.020

B.M. (applicant) v. K.S. (respondent)

(Hfx. No. 434621; 2015 NSSC 105)

Indexed As: B.M. v. K.S.

Nova Scotia Supreme Court

Boudreau, J.

April 9, 2015.

Summary:

The applicant was the named "delegate" in his mother's Personal Directive, executed in 2012. Paragraph 9 of the Directive expressed the mother's "wish that my delegate (in conjunction with my attorney) ensure that I am able to live in my house for the remainder of my life, with appropriate care arranged, including the assistance of a full-time caregiver ... no matter what my physical or mental condition might be." She repeated the wish in her Power of Attorney (POA) executed on the same day. The mother, presently 94 years of age, was incapable of making decisions for herself due to advancing dementia. She lived alone, with the assistance of full-time paid caregivers. Pursuant to s. 31 of the Personal Directions Act, the applicant sought advice and directions, and an order that paragraph 9 of the Personal Directive ceased to have effect. It was the applicant's position that the mother be placed in an elderly care facility. The respondent, a co-attorney under the POA, opposed the plan.

The Nova Scotia Supreme Court ordered that the mother was to remain in her home under the present caregiving and financial arrangements, for so long as it remained possible.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Persons of Unsound Mind - Topic 746

Committees (incl. substitute decision maker) - Powers and duties - Application for directions - The applicant was the named "delegate" in his mother's Personal Directive - Paragraph 9 of the Directive expressed the mother's "wish that my delegate (in conjunction with my attorney) ensure that I am able to live in my house for the remainder of my life, with appropriate care arranged ..." - She repeated the expressed wish in her Power of Attorney (POA) - The mother, presently 94 years of age, was incapable of making decisions for herself due to advancing dementia - She lived alone, with the assistance of full-time paid caregivers - The applicant sought directions, pursuant to s. 31 of the Personal Directives Act - It was the applicant's position that it was no longer in his mother's best interests to stay in her home and that she be placed in a long-term elderly care facility - The respondent, a co-attorney under the POA, opposed the plan - The applicant submitted that a "wish" was not binding in the way that an "instruction" would be - The Nova Scotia Supreme Court disagreed - The mother's expressed wish to remain in her home was, in fact, the only specific request she made of her delegate - The Act was imprecise, using both "wishes" and "instruction" without any differentiation - It was not material that the mother used the word "wish" instead of "instruct" in respect of the request to remain in her home - It was a clear, important, and unequivocal direction - The reference to the delegate and attorney working "in conjunction" acknowledged that the wish to remain home was dependent on having the financial ability to do so - It therefore required, at the very least, the input of those persons having control of her finances - In the result, the Court ordered that the mother was to remain in her home under the present caregiving and financial arrangements, for so long as it remained possible - See paragraphs 24 to 32.

Persons of Unsound Mind - Topic 746

Committees (incl. substitute decision maker) - Powers and duties - Application for directions - The applicant was the named "delegate" in his mother's Personal Directive, executed in March 2012 - The Directive expressed the mother's wish that "my delegate (in conjunction with my attorney) ensure that I am able to live in my house for the remainder of my life, with appropriate care arranged ... no matter what my physical or mental condition might be." - The mother, presently 94 years of age, was incapable of making decisions for herself due to advancing dementia - She lived alone, with the assistance of full-time paid caregivers - The applicant sought advice and directions, pursuant to s. 31 of the Personal Directives Act - It was the applicant's position that his mother be placed in a long-term elderly care facility - He submitted that the exception found in s. 15(2)(a)(iii) of the Act should be applied; specifically, that had his mother, presently 94 years of age, known that she would experience the loss of her husband in September 2012, and anticipated her present state of advancing dementia, she would not have chosen to remain in her home - The Nova Scotia Supreme Court disagreed - The Personal Directive was clear that the mother's wishes remained the same, no matter her health status - In the result, the Court ordered that the mother was to remain in her home under the present caregiving and financial arrangements, for so long as it remained possible - See paragraphs 33 to 38.

Cases Noticed:

Sweiss v. Alberta Health Services et al. (2009), 483 A.R. 340; 2009 ABQB 691, refd to. [para. 24].

Statutes Noticed:

Personal Directives Act, S.N.S. 2008, c. 8, sect. 3(1)(a), sect. 3(1)(b), sect. 3(5), sect. 5(1), sect. 5(2), sect. 9, sect. 15(1), sect. 15(2) [para. 20]; sect. 29, sect. 31(1)(f), sect. 31(1)(i), sect. 31(1)(k), sect. 31(3) [para. 21].

Counsel:

Richard S. Niedermayer, for the applicant;

S. Clifford Hood, Q.C., for the respondent.

This application was heard on March 2, 2015, in Halifax, Nova Scotia, before Boudreau, J., of the Nova Scotia Supreme Court, who delivered the following judgment, dated April 9, 2015.