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June 16, 2016 by FH&P Lawyers
Adult Caregivers
The scenario starts out like this: an elderly parent is unable to care for themselves and an adult child moves in to help take care of them.
A will that divides the estate equally may be challenged by an allegation that the caregiver abused their position through undue influence or abused a Power of Attorney given to them.
A recent case called Robillard v. Robillard Estate, 2015 BCSC 1417 involved an adult son who acted as a caregiver and an adult daughter who lived in another country. The adult son performed many care giving services short of actually living with his mother and after she had been placed in a care home he visited her for several hours every day and helped feed her and took her on outings. There was no issue with the quality of the physical care he provided. However, using the Power of Attorney (POA) while his mother was alive and as Executor after she died he wrote himself cheques for ten’s of thousands of dollars up to $150,000.00 and basically depleted the Estate. As Executor he sent his sister a small cheque saying it was her share of the Estate.
The daughter demanded an accounting. Since the Will divided the Estate evenly the son sued the Estate asking for a larger portion to compensate for his services. The daughter countersued for an accounting of monies he had wrongfully take as Attorney and as Executor. The Court found that the son had abused the POA by taking funds for his own benefit and failing to keep any records; and found that many of the “services” he did for his mother were either no more than any normal family member would do or were excessive and did not provide any benefit to his mother beyond what the care home was already doing. His claim for an increased portion of the Estate was dismissed and he was required to repay the funds he had taken from the Estate. Once that was done then the Estate was divided between the two. The son was also stripped of his fees for acting as an Executor – normally 3 – 5% of the Estate.
A similar case, which settled so we don’t have Reasons for Judgment, involved a daughter who moved in to care for her elderly father when he was alive and then helped the Executor prepare her father’s house for sale. The other beneficiary was a brother who did not help care for the father or help get his Estate ready. After the father died the brother accused his sister of misusing her POA and sued her to replace funds taken from the Estate. The daughter who did all the work had to provide an accounting and also to prove that her father was not suffering from any mental disability or dementia and that his decision to pay her for care giving was his own decision. Better record keeping would have made this claim easier to dispute. By not keeping better records the daughter left herself vulnerable to a claim.
Lessons learned:
If you see physical abuse call 911; if you see financial abuse you can call the Public Trustee and Guardian or see a lawyer at FH&P.