2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Best Interests or Expressed Wishes: What Takes Priority in a Personal Directive?
Justice Boudreau of the Nova Scotia Supreme Court was called upon to assess this issue in the matter of B.M. v. K.S. Her Ladyship concluded that a clear and unequivocal expression of interest in a Personal Directive should normally be followed even if it is arguably not in the objective best interests of the person who signed the Personal Directive.
In the decision the Court referred to the various parties only by their initials. Mrs. L. was 94 years old and lived in her home in the Yarmouth area. Her husband, Mr. L., had passed away in September 2012. Since that time Mrs. L. had continued to live in the family home but required the assistance of care workers 24 hours per day and seven days per week.
Mrs. L. executed a Personal Directive on March 1, 2012. She appointed her son, B.G.M. as her delegate. On that same day she also signed an Enduring Power of Attorney which appointed BMO Trust Company and P.S. as Co-Attorneys.
The Personal Directive included the following provision:
“Home care I express the 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 to allow me to remain in my house, no matter what my physical or mental condition might be.”
The Enduring Power of Attorney had a corresponding clause as follows:
“Home care I express the wish that my attorney (in conjunction with my delegate) 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 to allow me to remain in my house, no matter what my physical or mental condition might be.”
BMO Trust Company managed a trust fund for Mrs. L. The cost of the in home care arrangements were paid from the fund. The evidence indicated that the balance in the fund would allow the home care to be paid for at least a further two years from the time of the Court application.
In his capacity as Mrs. L.’s delegate, her son, B.M., commenced a Court application seeking the direction of the Court. Among other things, he sought an order declaring that the homecare provision of the Personal Directive no longer had effect such that he could move his mother to a nursing home facility. The evidence he put forward was that his mother’s best interests would be served if she moved to a nursing home where she could interact with others and have an increased level of stimulation.
The Co-Attorneys under the Power of Attorney opposed the application. The evidence of the individual Co-attorney was that Mrs. L. would not be best served by moving from her home. It was his belief that she would find this disorienting and unsettling.
The delegate took the position the words in the Personal Directive were merely a “wish” of Mrs. L. rather than a firm “instruction”. As such, in his submission, they were not binding, particularly if the evidence confirmed that Mrs. L.’s best interests would be served by moving her to a nursing home.
After reviewing the applicable provisions of the Personal Directives Act and referencing an Alberta decision which had addressed the issue, Justice Boudreau rejected the delegate’s submission that a distinction could or should be drawn between the terms “wishes” and “instructions”. Justice Boudreau stated:
“I note that the Act is imprecise as to this question. Section 3(1)(a) mentions ‘setting out instructions or an expression of the maker’s values, beliefs and wishes’; this is a distinction without a difference. Section 15 states: ‘in making any decision, a delegate shall (a) follow any instructions in a personal directive …’ but later states: ‘in the absence of instructions, [the delegate must] act according to what the delegate believes the wishes of the maker would be …’. Section 31(3) of the Act again uses both words ‘wishes’ and ‘instruction’ without any differentiation.”
In light of her interpretation of the relevant provisions of the Act and the wording of the Personal Directive, Justice Boudreau concluded as follows:
“In my view, in this particular case, it is not material that Mrs. L. used the words ‘wish’ instead of ‘instruct’ in respect of the request at section 9 of her Directive. It was a clear, important, and unequivocal direction. Pursuant to section 15 of the Act the delegate must follow directions.
Paragraph 9 of the Directive is clear. Mrs. L. wished to remain in her home, so long as it was possible. As matters presently stand, it remains possible. Whether this is or is not, in her ‘best interest’ is not for this court to determine. This is her expressed wish and I order that this provision of her Directive be respected by her delegate. J.L. is to remain in her home under the present care-giving and financial arrangements for so long as it remains possible.”
The decision confirms that a clear and unequivocal direction contained in a Personal Directive will be given significant deference and respect by the Court. It reinforces the need for clarity and precision in the drafting of Personal Directives.
It does appear that the door has been left open for a departure from or an overriding of language in a Personal Directive if the wording is insufficiently clear and subject to interpretation. It is to be noted that in this case there was conflicting evidence as to what was or was not in the best interests of Mrs. L. In future matters, perhaps there would be a different result if there was imprecision in the language of the Personal Directive combined with uncontested evidence that a departure from the terms of the Personal Directive would be in the best interests of the incompetent person.