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Court Ruling Shows Failure by BC’s Public Guardian, Says Victim

Agency accused of being 'grossly negligent' in overseeing management of vulnerable woman’s finances.

Andrew MacLeod 30 Jun 2022TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria and the author of All Together Healthy (Douglas & McIntyre, 2018). Find him on Twitter or reach him at .

Terry Morrison thinks British Columbia’s Public Guardian and Trustee should have done more to protect the interests of his younger sister and should compensate her for her losses.

And he worries other vulnerable people may also be at risk.

“I thought they would have done something,” said Morrison on the phone one evening, describing problems that stretch back two decades. “If PGT policy can allow this, there’s something wrong with the system.”

The public guardian’s office, which told Morrison it had followed its policies and had done nothing wrong, is a provincial government agency that reports to the attorney general and provides a variety of services to adults and children who may need help managing their affairs — including their finances. It has a role protecting the interests of some of the province’s most vulnerable people.

The details of what happened to Morrison’s sister Joelle Jones under Public Guardian and Trustee oversight are recounted in a 31-page 2021 BC Supreme Court decision by then-registrar Scott Nielsen.

They date back to 2001, when Jones was living in Red Deer, Alberta, and went into a diabetic coma that lasted about three weeks. She was 33-years-old, and had lived with diabetes since she was 11.

Jones survived the coma but suffered physical and intellectual disabilities that made it impossible for her to look after herself or manage her own money. She moved into her father’s home in Surrey, B.C., where her brother Morrison also lived.

Their older sister, Carrie Victor, was appointed as committee of Jones’s estate, a legal designation making her responsible for Jones’s property and finances. It required her to act in her sister’s financial best interests.

In B.C., when a “private committee” like Victor is assigned to take over responsibility for another person, the Public Guardian and Trustee provides oversight. According to the agency’s 2020-2021 annual report, it was monitoring 2,070 private committees.

The agency’s website says one of its departments “helps committees to understand their role and monitors the actions of committees by reviewing their accounts on a regular basis and undertaking investigations when concerns are reported.”

Committees like Victor are required by law to report to the agency.

For more than a decade, Victor acted as Jones’s committee, a period when Jones received about $12,000 a year in disability benefits.

According to Nielsen’s report for the court, in 2012 Jones and Morrison “became concerned when they discovered that Carrie [Victor] had not deposited several cheques payable to Joelle [Jones], and had failed to pay Joelle’s allowance to her.”

Jones, who had largely recovered by then, applied to have herself declared capable of handling her own affairs and to have Victor removed as her committee. The order, pursued at significant expense to Jones, was granted at the end of October 2012. As part of the process, the court required that Victor demonstrate that all was in order with Jones’s accounts.

But the court decision noted that although the Public Guardian and Trustee had three times previously looked at and passed the accounts Victor had prepared, Jones did not believe the accounting had been correct.

“[Jones] alleges those accounts were incomplete, inaccurate and contained misrepresentations,” the court decision said. She also alleged Victor had failed to provide the Public Guardian and Trustee with details from Jones’s chequing account — from which money was taken, mixed with Victor’s funds, and spent in ways that were not for Jones’s benefit.

“She further alleges that Carrie [Victor] intermingled and misappropriated her funds, and has failed to account for monies over the 12 years she acted as committee,” it said.

According to the Public Guardian and Trustee website, it is “unacceptable” for someone to hold a joint bank account with someone for whom they are the committee.

Victor, for her part, agreed during the court proceeding that she had intermingled her and Jones’s funds “and that her accounting is not perfect,” but that she’d done her best to recreate the accounts and that she only acted for Jones’s benefit and that Jones had in fact benefited from her intermingling the funds.

The court looked in detail at various expenses, including ones related to entertainment, gas, clothing, food and respite care.

In the end it agreed with Jones that Victor “has failed to meet the standard of a reasonable and prudent business person, and has failed to act in the patient’s best interests.” It listed 10 such failures, including the intermingling of accounts, the failure to account for more than $50,000 in expenses and the failure to keep reasonable records of how Jones’s money was being used.

The failures included “charging the patient for services not provided, including alleged respite services” and “charging the patient for purchases which were not for the patient’s benefit, and double charging the patient for food and groceries.”

The court found “the co-mingling of funds in this case is particularly egregious” since Victor had been aware from soon after she took on the responsibility that it was a breach of her duty and that the practice made it “virtually impossible” to trace how Jones’s money was used.

Victor used Jones’s chequing account “as her personal ATM throughout the committeeship,” it said.

The decision noted that the Public Guardian and Trustee had approved Victor to pay herself $2,195 remuneration, but recommended the amount be denied since “given the conduct of [Victor], no remuneration is appropriate.”

The Tyee’s efforts to reach Victor were unsuccessful.

Speaking on the phone Jones uses the word "stealing" to describe what her sister had done. "It's horrible,” she said, “and considering she's my older sister and supposed to care about me."

But she also said she couldn’t understand why the PGT had been unwilling to communicate with her about her own finances or done more to make sure they were responsibly managed.

The registrar recommended that the court refuse to pass Victor’s accounts as she’d presented them, that she be paid nothing to remunerate her for her work and that she pay back Jones’s estate $50,000 plus interest.

It mentioned, however, that a “complicating factor” could be the fact that Victor filed for bankruptcy in 2016.

Morrison said that Victor’s bankruptcy has in fact made it unlikely that Jones will ever get repaid. Pursuing Victor for payment could very well cost more in legal fees than Jones is likely to ever recover, he said.

Given the circumstances, Morrison said, the Public Guardian and Trustee should be accountable for its oversight failures and liable for Jones’s loss.

“We never should have been put in this position,” he said. “If the PGT had done their job, we wouldn’t be in this position.”

The Public Guardian and Trustee disagrees. According to correspondence from the agency that Morrison shared with The Tyee, it has so far failed to acknowledge that it should have been more diligent and has refused to compensate Jones for her losses.

According to the Public Guardian and Trustee’s 2020-2021 annual report, “Accountability to PGT clients is exercised through internal review processes, the ombudsperson and judicial oversight of PGT statutory and fiduciary obligations.”

The Public Guardian and Trustee's executive director for corporate projects and strategic operations, Sara Maloney, said in an email she could not speak about a specific case, but responded to general questions.

“When reviewing the accounting of private committees, the assessment is conducted by way of a financial review, not an audit,” Maloney said.

“Private committees must swear an affidavit that the information provided to the PGT is accurate and complete,” she said. “The PGT relies on this information to conduct the financial review and does not independently validate or verify the information unless a concern has been raised or an anomaly with the accounts is discovered.”

When there’s evidence substantiated through an investigation that a private committee has mismanaged an incapable adult’s finances or assets, a department of the Public Guardian and Trustee will apply to the court to have the committee removed. That's something that happens rarely, about five times a year, she said.

People who are unhappy with the public guardian’s performance can ask for a review and most issues are resolved at the operational level, she said. In 2021-2022, she added, there was just one concern about a private committee that went to the Public Guardian and Trustee top level of review.

Complainants who are unsatisfied with the results of the PGT’s reviews can take their concerns to the province’s ombudsperson or file a legal claim against the Public Guardian and Trustee, she said.

In the year ended March 31, 2021, the ombudsperson received 51 complaints about the PGT, plus another 12 inquiries.

A search of civil cases filed in B.C.’s courts shows 135 where the Public Guardian and Trustee was named as a defendant.

Morrison first raised concerns through the PGT’s internal review process. At each step he received similar responses saying that the agency had followed its normal policies for monitoring accounts and couldn’t be expected to give them the same scrutiny that they got in the court’s review process.

A 2021 letter from the manager of private committee services, Vincent Tan, said: “If funds were used personally by the committee and later repaid, or if expenses and the personal circumstances of the adult were misrepresented, our review of accounts would not have caught these issues.”

The Public Guardian and Trustee’s financial review is not a forensic audit and simply looks at how much an incapable adult’s estate changes in value over a given period of time and whether that change lines up with what would be expected. The accounting does not have to be perfect and the PGT doesn’t look closer unless concerns are raised, he said.

“The management of Ms. Jones’ financial affairs appeared reasonable given what information was presented to us,” Tan wrote.

Another official, Trudie Manoloudis, expressed sympathy in a January letter for the “frustration” Morrison and Jones had experienced for over a decade, and said it was “disappointing to learn that the committee did not provide true and accurate account submissions to the PGT which resulted in financial loss to [Jones].”

But the facts in those submissions hadn’t been under question at the time that the Public Guardian and Trustee was monitoring the committeeship, she said, and she offered no remedy.

In a March 24 letter sent at the end of the final review stage, the Deputy Public Guardian and Trustee Dan Orsetti told Morrison that the PGT relies on sworn affidavits, as do many other legal processes, and accepts them as true unless they are challenged.

“Ms. Victor appears to have provided misleading information in the form of sworn evidence,” Orsetti acknowledged. “While some of the information provided on the PGT review of Ms. Victor’s accounting resulted in additional questions being asked, there were no issues raised or information presented that would have properly justified an investigation or rescission of her committeeship.”

It was only through the “more rigorous process of the registrar’s hearings” that the extent of Victor’s efforts to conceal her activities were revealed, explaining why the PGT hadn’t discovered them, Orsetti wrote.

“Compensation would not be considered in these circumstances,” he said.

Morrison remained unsatisfied with the PGT’s response. “The PGT has accepted no responsibility,” he said.

From early in the committeeship, the Public Guardian and Trustee knew Victor was co-mingling her and Jones’s money, but did nothing to stop it or investigate further, he said.

“That should have been a red flag and they could easily have caught it.”

There were other financial details regarding a loan that should have aroused the PGT’s curiosity, said Morrison, who characterizes the agency’s approach to the file as “grossly negligent.”

Nor did officials follow up when he raised concerns a couple years before Jones took back control of her own affairs, he said.

If what happened to Jones can happen when the PGT is following its policies, then there’s something wrong with the policies, Morrison said. If it’s not watching situations closely enough to catch that kind of wrongdoing, he asked, what’s the point of having it involved?

He recently took the next step of making a complaint to Ombudsperson Jay Chalke’s office about the Public Guardian and Trustee, but was doubtful it would go anywhere. At The Tyee’s publication time, he was waiting to see if the ombudsperson will open an investigation into what happened.

Today Jones continues to live with the challenges of a brain injury and Type 1 diabetes, but can look after herself and be independent with the support of Morrison, whom she lives with. She said it's nice to have control of her own bank account again and to be able to see the balance growing, and that she's grateful for her brother's support.

"Every day is a gift, and that's how I look at life," she said.

Jones added that it is likely uncommon for people like her to regain control of their own affairs and that she believes it’s important to publicly tell the story of what happened to her so changes can be made to protect others. "It happened in my case and I can't be the only one," she said. "I appreciate any recognition because they have to be held accountable."

Morrison said dealing with the issues around the private committee, the PGT and the court process have been a source of frustration and anger for Jones and have led to depression for her. It’s taken a toll on him as well, he said.

Ultimately the government needs to improve the laws that govern the Public Guardian and Trustee, Morrison said, adding that doing so would better protect the thousands of vulnerable people like Jones who depend on it.

A spokesperson for the attorney general said that there are no changes being contemplated to the legislation that governs the PGT with regards to private committees at this time.  [Tyee]

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