Parental custody 101 – from brain surgery to legal fees

A Haines Junction man is wondering why it’s taken more than one year and $10,000 in legal fees to prove he has a right to look after his aging…

A Haines Junction man is wondering why it’s taken more than one year and $10,000 in legal fees to prove he has a right to look after his aging parents.

Someone needs to review and update the Yukon Decision Making, Support and Protection to Adults Act, says Bill Karman, who asserts his cousins’ wives used the legislation to secretly take control of his parents’ finances.

The resulting legal battle has cost more than $10,000 personally, said Bill.

He doesn’t know how much it has cost his parents.

Bill’s long, complicated struggle serves as a warning to people about the importance of having your affairs and wishes clearly laid out before trouble finds you.

Trouble found this family in June 2006, said Bill, who chronicled his saga with a sheaf of e-mails, letters, affidavits and other court and legal records about an inch thick.

“My (88-year-old) mom went to Vancouver for brain surgery and, when she came back, they said she would never be able to live at home again,” he said.

With his mother incapacitated, his father, Ed Karman, was put in the Copper Ridge seniors’ home.

That’s when things with his parents, Ed and Elizabeth (“Betty”) Karman, took a turn for the worse, said Bill, an only child.

His cousin’s wives, Deborah and Jean Bastien, had his mother Betty replace a power of attorney document she signed with Bill a few weeks after her surgery in early July 2006.

A few weeks later, Betty formally named the Bastien women powers of attorney should she ever be deemed incapable, said Bill pointing to the documents in question.

Betty, also revoked the longtime signing authority the elderly couple had granted Bill and his wife, Shirley, on their bank accounts.

“She wouldn’t be contacting lawyers, she wouldn’t be making these decisions on her own,” he said, suggesting his mother was being exploited after her surgery.

It gets odder still, he said, presenting a note from Betty’s doctor.

“She does have significant cognitive impairment,” said the July 31, 2006, letter from Dr. Peter J. Anderson.

“This impairment is largely related to memory, especially short-term memory.

“It is my view that she is not capable, at this time, of making major decisions regarding her living situation and for some health-care decisions.”

The expensive court battle started in August, after a lawyer deemed Ed Karmen incapable of signing a power of attorney.

The courts awarded the Bastien women temporary guardianship of Bill’s 92-year-old father.

The order gave the Bastien women authority to administer Ed’s pension cheques, $250,000 in property he owned with his wife and $175,000 in cash.

It also entitled them to draw “reasonable expenses” from the elderly couple’s bank account, though they were prohibited from disposing of non-cash assets.

Bill and his father were not included in the decision.

“(Ed) wasn’t served the papers until after the fact,” said Bill. “We weren’t served any papers to give notice until after the fact.”

And his father’s money was used to pay the Bastiens’ legal bills, he said.

After receiving that temporary guardianship, the Bastiens were required to have an incapability assessment performed on the father.

The assessment is required when seeking permanent guardianship. It cost about $1,300, and was paid out of the elderly couple’s estate, according to Justice officials.

It shouldn’t have happened, said Bill, presenting a doctor’s letter stating his father was still mentally capable of handling his own affairs.

“With regard to mental capacity, he has always been oriented and has appeared capable to me of making his own decisions,” said Dr. Anderson in a letter dated September, 2006.

The Bastien women are not relatives and are a poor choice for guardians, said Shirley, Bill’s wife.

Deborah Bastien, the alternate temporary guardian, and her husband Phil had a $33,000 government loan sent to a collection agency in March, 20005, she noted.

The Bastien women had a different take.

According to guardianship affidavits filed in court, Jean and Deborah Bastien were protecting the elderly couple’s assets.

“(Bill and Shirley) removed a safe containing cash and important papers from Ed and Betty’s home, and the key for the safe,” states Jean Bastien in a Yukon Supreme Court affidavit.

“They threw out household items that they did not consider valuable. They have also withdrawn money on Ed and Betty’s account, and have written at least one cheque on the account.

“(I)t has become clear to me that Bill and Shirley Karman have not been acting in the best interests of Ed and Betty Karman,” wrote Jean Bastien.

Both Jean and Deborah Bastien refused interview requests. (Bill said he moved the safe from his mother’s empty house to protect it.)

Betty was upset her husband was put into a home two days after she was admitted to hospital, according to her affidavit.

She was also upset her belongings, including the safe, had been moved from her home while she was away.

She had arguments with Bill and Shirley about the use of her finances in the month following her surgery.

She also disagreed with directions provided to the tenant of her rental property, said Betty’s affidavit.

“Since these actions of Bill and Shirley have come to light, I have taken steps to make it clear to (them) that I do not wish them to have any access to, nor power over Ed’s and my joint finances.

“I have removed the majority of funds from our joint account, and I have placed them into an account that cannot be accessed except by attendance by me at the Bank of Montreal with the bank manager present.”

The legal wrangling over Ed’s guardianship continued until he passed away just after Christmas.

In January, the inter-family legal row began again when Bill applied for temporary guardianship over his mother Betty, according to court records.

Bill’s application process dragged on until September, the month the court ordered the office of the public guardian and trustee to manage Betty’s finances until her mental capacity could be assessed.

That order came about a month after Betty received a letter from the government’s adult protection office warning her not to give her money away.

In November, Betty was deemed competent to handle her financial, health-care and legal decisions, with help.

She is choosing her son Bill for that help, according to a copy of her assessment.

The matter is still before a judge.

The four-year-old law needs a review to prevent this type of problem from happening to other people, said Bill.

The 2003 law hasn’t been reviewed, said Shauna Curtin, the Justice department’s director of court services.

While disputes can be messy, the legislation has done a lot for Yukon families, she said.

“For the most part, I think this legislation has been very helpful to most families,” she said.

“Its overall intent was to protect Yukon families because we did have the situation where there was no protection in law for those who were being financially abused — none.

“The thing was, people could be taken extreme advantage of and be the victim of incapacity with no remedy to help them in the event their entire fortune is dissipated.”

Permanent guardianship and temporary guardianship are different, she said.

Permanent guardianship is a process with checks and balances that include an incapacity assessment performed by doctors, nurses and/or occupational therapists.

Temporary guardianship orders are issued in the case of emergencies.

They do not require a person to be deemed incapable before surrendering control of their assets, she said.

“There’s no actual burden of proof, but rather a belief,” said Curtain. “That’s why those orders can be made for no longer than 180 days.”

By law, a ward and their family does not always have to be notified that a temporary guardianship has been awarded, even though that might involve control over their personal finances, said Curtain.

If they want to contest such a ruling, they can challenge it in court, she said.

It is unlikely a judge would award such guardianship over an individual without proof it is needed, she said.

 “It would be very, very odd to make an application for such an order, which is a very intrusive order, without being able to provide any evidence for what your belief was.”

A ward does have to be told about permanent guardianship applications, she added.

If families are involved in a custody battle, it is not up to the Justice department to settle it, said Curtain.

“For dispute, the mechanism that’s available is the court, that’s the only option.”

The best way for disputes to be avoided is for people to organize their affairs and document their wishes before something happens, said Curtain.

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