Government fights itself over guardianship dispute

Two arms of the Yukon government duked it out in the Supreme Court on Friday over whether the territory should continue to make decisions for a 65-year-old Old Crow resident with the mental capacity of a five-year-old.

Two arms of the Yukon government duked it out in the Supreme Court on Friday over whether the territory should continue to make decisions for a 65-year-old Old Crow resident with the mental capacity of a five-year-old.

It was a “precedent setting decision,” said Justice Leigh Gower, who heard the case. He ruled that the government still has a responsibility to the person, whose identity cannot be disclosed because of a publication ban. Because of complications revealed during the hearing over the power of a guardian, he also recommended an amendment to the Decision Making, Support and Protection to Adults Act.

The Office of the Public Guardian and Trustee, which falls under the Justice Department, argued that the Old Crow resident no longer needs the guidance of a public guardian. It’s too “intrusive” to continue to have a guardian in the person’s life, and it is in the person’s best interest to be on their own, said Judith Hartling, a government lawyer who represented the public guardianship office in court.

The guardian helped the Old Crow resident make financial decisions – and now that the adult no longer has any money, there is “very little” the guardian can do, said Hartling. The person’s family, First Nation and workers with the Fetal Alcohol Syndrome Society of the Yukon have also provided support, which is what the person needs most, said Hartling.

A Supreme Court order in 2010 assigned a guardian to the adult, after an accessibility assessment by an occupational therapist found severe cognitive impairments and disabilities. The adult was assessed as needing help in all four areas in which a guardian can help make decisions: personal, legal, financial and health matters.

Norah Mooney, a private lawyer who represented the Department of Health and Social Services, argued that the adult was extremely vulnerable – and still is.

The adult needs help when making financial decisions, said Mooney, as the person works and receives income tax returns. Mooney also highlighted an important time that the guardian stepped in, signing a consent form on the adult’s behalf to obtain much-needed medical records.

Although the adult has more supports now than in 2010, no one has stepped forward to be an official guardian, said Mooney.

Gower agreed. There was no suggestion of a replacement guardian and there would need to be more evidence to appoint one, he said.

The adult wouldn’t always follow the recommendations of the guardian. Of particular concern was how the Old Crow resident would fly from the remote community to Whitehorse, which was a problem because the person would get drunk in the city.

The guardian said she asked the airline to prevent the individual from boarding flights to Whitehorse. But the company argued that the person was an adult.

Gower compared the situation to a five-year old who wanted to travel on their own, and that a guardian should be able to enforce that.

He was not satisfied with Hartling’s submissions. Because of the 2010 court order, it is the responsibility of the guardianship office to prove that the person’s circumstances have actually improved in order to remove the guardian.

Gower also said that it would have been “helpful” if the office provided a current assessment of the adult to prove a guardian is no longer needed. Hartling admitted the 2010 assessment indicated it was a permanent assessment.

Doctor Christine Loock, a Vancouver-based doctor who specializes in congenital conditions and developmental disorders, echoed Gower on the importance of an assessment, speaking during an interview after the court dispute.

“You don’t chronologically outgrow your cognitive disability. It’s permanent,” she said. “You don’t age out of the need (for support),” Loock added.

“I would implore and encourage (the guardianship office office) to pursue more protocols,” Gower said about the office’s confusion with what authority it has. To further protect people with mental disabilities from harming themselves by being able to travel alone, he recommended an amendment to the law.

He asked Mooney to come up with the final wording, but he suggested it should allow the guardian to “permit or restrict travel within the Yukon territory or elsewhere.”

Currently, the office has assigned a guardian to 16 adults in the territory. Most of them need help with financial and legal decisions, said Lesley McCullough, a spokesperson for the Justice Department.

Mike McCann, the executive director of the Fetal Alcohol Syndrome Society of the Yukon, lauded Gower’s decision. Currently, the non-profit handles around five people who have been assessed with needing a guardian, he said.

“Maybe this court case is a good thing for them (the guardians) because they got clear direction of the scope of their responsibility under the (adult protections) act.”

Contact Krystle Alarcon at

krystlea@yukon-news.com

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

The Liberal government blocked a motion by Yukon Party MLA Brad Cathers that would have asked the federal government to provide the territories with more than a per capita amount of COVID-19 vaccine doses during initial distribution. (Crystal Schick/Yukon News file)
Yukon Party says a per capita distribution of vaccines would leave Yukon short

The opposition is also asking the government to release their plan for vaccine distribution

asdf
WYATT’S WORLD

Wyatt’s World for Dec. 4, 2020

Dawson City’s BHB Storage facility experienced a break-and-enter last month, according to Yukon RCMP. (File photo)
Storage lockers damaged, items stolen in Dawson City

BHB Storage facility victim to second Dawson City break-and-enter last month

A proposed Official Community Plan amendment would designate a 56.3-hectare piece of land in Whistle Bend currently designated as green space, as urban residential use. Whitehorse city council will vote on the second reading of the Official Community Plan amendment on Dec. 7. (Courtesy City of Whitehorse)
Future area of Whistle Bend considered by council

Members set to vote on second reading for OCP change

The City of Whitehorse’s projected deficit could be $100,000 more than originally predicted earlier this year. (Crystal Schick/Yukon News file)
City deficit could be just over $640,000 this year

Third quarter financial reports presented to council

The Town of Watson Lake has elected John Devries as a new councillor in a byelection held Dec. 3. (Wikimedia Commons)
Watson Lake elects new councillor

The Town of Watson Lake has elected John Devries as a new… Continue reading

The new Little Salmon Carmacks First Nation council elected Dec. 1. (Submitted)
Little Salmon Carmacks elects new chief, council

Nicole Tom elected chief of Little Salmon Carcmacks First Nation

Submitted/Yukon News file
Yukon RCMP’s Historical Case Unit is seeking information related to the unsolved homicide of Allan Donald Waugh, 69, who was found deceased in his house on May 30, 2014.
Yukon RCMP investigating unsolved Allan Waugh homicide

Yukon RCMP’s Historical Case Unit is seeking information related to an unsolved… Continue reading

A jogger runs along Millenium Trail as the sun rises over the trees around 11 a.m. in Whitehorse on Dec. 12, 2018. The City of Whitehorse could soon have a new trail plan in place to serve as a guide in managing the more than 233 kilometres of trails the city manages. (Crystal Schick/Yukon News file)
2020 trail plan comes forward

Policies and bylaws would look at e-mobility devices

Snow-making machines are pushed and pulled uphill at Mount Sima in 2015. The ski hill will be converting snow-making to electric power with more than $5 million in funding from the territorial and federal governments. (Joel Krahn/Yukon News file)
Mount Sima funded to cut diesel reliance

Mount Sima ski hill is converting its snowmaking to electric power with… Continue reading

Colin McDowell, the director of land management for the Yukon government, pulls lottery tickets at random during a Whistle Bend property lottery in Whitehorse on Sept. 9, 2019. A large amount of lots are becoming available via lottery in Whistle Bend as the neighbourhood enters phase five of development. (Crystal Schick/Yukon News file)
Lottery for more than 250 new Whistle Bend lots planned for January 2021

Eight commercial lots are being tendered in additional to residential plots

The Government of Yukon Main Administration Building in Whitehorse on Aug. 21. The Canada Border Services Agency announced Nov. 26 that they have laid charges against six people, including one Government of Yukon employee, connected to immigration fraud that involved forged Yukon government documents. (Crystal Schick/Yukon News file)
Charges laid in immigration fraud scheme, warrant out for former Yukon government employee

Permanent residency applications were submitted with fake Yukon government documents

Black Press Media and BraveFace have come together to support children facing life-threatening conditions. Net proceeds from these washable, reusable, three-layer masks go to Make-A-Wish Foundation BC & Yukon.
Put on a BraveFace: Mask fundraiser helps make children’s wishes come true

From Black Press Media + BraveFace – adult, youth and kid masks support Make-A-Wish Foundation

Most Read