Late last year, Brian Reed appeared in court on behalf of his brother Bruce, a Michener resident for 46 years, asking whether he could continue to withhold consent of a move of his brother out of Michener indefinitely. In the absence of “equal or better care,” Reed argued, he should be able to block any move based on the provisions of the Adult Guardianship and Trusteeship Act.
Bruce regularly suffers from seizures and is fed through a feeding tube; in court his brother stated that moving him into a community group home could hasten his death. Though the judge dismissed his appeal for an injuction order partly due to the fact that Brian was merely an alternate guardian for his brother, he did acknowledge that Brian made some good points and suggested he get some legal advice before proceeding further.
Other family members of residents too are basing their actions on the premise that without their consent, there is no way that their loved ones can be moved. The guardianship act says that guardians shall exercise their authority in the represented adult’s best interests and in good faith. If a guardian believes his decision is “not being given effect” and that that fact could risk the health and safety of the represented adult, he can go through the courts, which can subsequently “make any order” to ensure the guardian’s wishes are being heeded.
On the other hand, the court can terminate a guardianship order if a guardian has not fulfilled their duties and responsibilities, acted in a manner that might endanger the represented adult’s well-being, or if it is in the represented person’s best interest to terminate the guardianship.
Recent precedent suggests that guardians could eventually lose the authority to decide for their loved ones if they do not co-operate with transitional efforts. In Ontario, firm closure dates were set for the province’s last three large institutions and with the deadline approaching and some families still non-compliant, the province filed applications to the courts to get the last institutionalized residents into community placements.
For Lisa Kaye-Stanisky, holding off for as long as possible is the honourable thing to do for her brother Floyd’s well-being.
“If I dig my heels in long enough, he might be blessed enough to pass at Michener,” she said.
Floyd is 61, blind, deaf, non-verbal, and epileptic. He was one of the last Michener residents confined in a straitjacket — to wean him off of the outfit took years, according to Kaye-Stanisky — and even today he sits in his wheelchair with his arms crossed against his chest and his sleeves empty.
Even though in the past Floyd has been a victim of abuse at the centre — for which a staffer was charged and convicted — his sister believes that the care he gets now is first-rate. She worries that away from Michener, unaccustomed staff would revert to restraining him and feeding him through tubes, and in the community she fears he would not have adequate access to the services he needs.
Kaye-Stanisky is just one of a few dozen guardians who have ceased to meet with the Michener transition team in the hopes of November’s judicial review resulting in an injunction against the closure. The review hearing was initially scheduled for March 13, but the parents’ group behind the legal action pushed the date back to November, believing the eight additional months will allow it to formulate a stronger case.
The group of 22 plaintiffs currently signed on for the review will be hoping to prove in court that a group of ideology-driven individuals connected to government and not the government itself conceived of and directed the closure decision, according to parents’ society president Bill Lough. Lough says he is optimistic, based on the examination of communications in the lead-up to the closure announcement, that an injunction can be ordered and a compromise reached to keep Michener’s south site open for residents.
For his part, Edmonton lawyer Mark Keohane says the parents’ group should file a complaint through the Alberta Human Rights Commission, arguing that Michener residents are having their rights violated by being forced from their homes. Lough said such an action could be possible, depending on the result of the judicial review.