Do Personal Support Workers & Caregivers Owe Fiduciary Duties To The Individuals They Take Care
A recent Ontario Superior Court decision rules that personal support workers and caregivers may owe fiduciary responsibilities to the individuals they care for. This ruling is very important because it means that a judgment against a personal support worker or caregiver who has abused their relationship may survive bankruptcy. The case illustrates the ruling and the circumstances when fiduciary duties may exist.
Melissa Gibson-Heath was employed by a retirement home. After several years of part-time work she was promoted to full-time. In that position, she befriended an elderly resident, Clifford Hoyle, who suffered from several problems including dementia. Between May 2008 and March 2010, Ms. Gibson-Heath stole approximately $229,000 from Mr. Hoyle, essentially emptying his bank accounts.
The crime was largely successful until Mr. Hoyle died and his family tried to settle his estate. The theft was discovered and Ms. Gibson-Heath was charged criminally. She pleaded guilty and a restitution order to repay the funds was made. (She also was sentenced to 18 months imprisonment.) As is often the case, she declared bankruptcy, likely to rid herself of the restitution order to repay the funds.
The Bankruptcy and Insolvency Act has a provision that certain debts, such as debts arising from fraud, embezzlement, or misappropriation while in a fiduciary capacity is not discharged by the bankruptcy. Rather these types of debt survive bankruptcy. The issue for the estate then became whether Ms. Gibson-Heath was a fiduciary to Mr. Hoyle. If yes, the debt survived her bankruptcy.
The judge looked at the circumstances where fiduciary relationships can be found and noted that one of the key characteristics of the fiduciary relationship is the vulnerability of the beneficiary. Based on that, His Honour ruled that: "In appropriate circumstances, I conclude that the relationship between an elderly resident of a retirement home and a personal support worker can also be a fiduciary one".
Specifically, what troubled the court was the extreme vulnerability of Mr. Hoyle, who suffered from dementia and could not protect himself.
The Lesson: It is important to note, that this finding did nothing to assist Mr. Hoyle. He was never aware of the theft due to his dementia. It was not until after his death when his family became involved that the crime became known. It is, therefore, recommended that a person who has been diagnosed with dementia retain a qualified professional, such as the author, to act as attorney and manage the property of the individual. Had this occurred, Mr. Hoyle would have been protected and his estate would not have incurred the legal expenses of having to pursue Ms. Gibson-Heath for the stolen money.
Hoyle Estate v Gibson-Heath, 2017 ONSC 4481 (ON SC) https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4481/2017onsc4481.pdf
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