U. J
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 25 November 2022 |
| Year | 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2021/FAM/gua/00090 |
and
and
BS 2022 SC 146
The Hon. Madam Justice G. Diane Stewart
2021/FAM/gua/00090
IN THE SUPREME COURT
Mr. Elsworth Johnson for the Applicant
Mrs. Arlean P. Horton-Strachan for the Respondent
By Summons filed 26 th November 2021, RF (“the Applicant”), the lawful sister of OF (“the Patient”) applied to be made a party to the existing action pursuant to Order 15 Rule 6 (2)(b) of the Rules of the Supreme Court (“RSC”). She applied on the ground that the Medical Affidavits of Dr. Eddison Thompson and Professor, Dr. Magnus Ekedede which were submitted to obtain the initial order failed to comply with Section 12(2) and 12(3) of the Mental Health Act, and further that the Order made on the 24 th February and filed on 3 rd March 2021 be set aside on the grounds that—
-
a) The application filed on 10 th February 2021 does not comply with Section 12(5)(a) of the Mental Health Act (“the Act”) which makes it mandatory that ‘no guardianship application shall be made in any case unless and until the written approval of the Minister or a person authorized by him has been given with respect to the person named in that application as the prospective guardian of the patient’
-
b) That UJ is not acting in the best interest of the Patient and has not given full and frank disclosure as required by the Mental Health Act.
-
c) Pursuant to Part VII of the Mental Health Act, that the limited assets of the Patient are not being utilized and managed with the greatest economy by UJ and/or in the alternative that UJ be made to give an accounting of the Patient's assets to the Court.
By an Originating Summons filed 10 th February 2021, UJ, (“the Respondent”) filed an application to be appointed Guardian to care and manage the affairs of the Patient, her mother. The Affidavit in Support of Originating Summons was filed on 10 th February 2021.
The Respondent sought an Order that as the only daughter of the Patient, that the Guardian shall have all powers as granted to Guardians under the Act.
It was ordered on 24 th February 2021, before Bowe- Darville J. that the Respondent be appointed the Guardian of the Patient with powers vested as set out in Section 35 of the Act. The Respondent was ordered to be responsible for administering all of the Patients affairs, care and maintenance.
This Court granted an interim order on an urgent application on 2 nd December 2021 prohibiting the sale or encumbrance of the Patient's property situate at No. 38 Buttercup Lane, South Beach pending the determination of this application. It was also ordered that the Patient be examined by a medical doctor and a report on the Patient be provided to the Court forthwith.
The Patient, a 73 year old, after living in Nassau, for the majority of her life had been relocated to Glinton's Long Island to live with the Respondent, after becoming dependent and unable to care for herself. The Patient has been unable to make any decisions as to her personal care and financial affairs. The Respondent had advanced to the Court that Guardianship was necessary because the Patient was unable to care for herself due to health issues.
RF filed her affidavit in support of her application and avers that she is the lawful sister of the Patient. She maintained that after the Patient's surgery for a brain tumor, she was responsible for her care. The Respondent refused to assist with the care of her mother, and as a result the Patient lived with her until she returned to her own home. The Patient and the Respondent were not as close as the Respondent would lead one to believe and they did not enjoy a good relationship.
The Respondent agreed to make alternate housing arrangements for the Patient in Long Island as she could not accommodate the Patient at her home when she initially went to visit the Respondent. The Applicant acknowledged that she was a part of the decision for the Patient to visit the Respondent. At the time she believed that the Respondent would do right by her mother.
The Applicant was informed by SS, the Patient's caretaker that she did not live with the Respondent and that she was also concerned about the way that the Respondent was treating the Patient. She informed her that there was insufficient food and that she was advised by the Respondent to put the Patient's medication in her food.
In or about October 2017, the Applicant visited Long Island to see the Patient and her concerns were realized. The Respondent threatened the Applicant's life for visiting Long Island to see her sister. She reported the incident to the police. While in Long Island she would take the Patient out for rides, lunch and purchased items for her until she was advised by ASP Neely that she could no longer interact with the Patient pursuant to the Guardianship order granted 24 th February, 2021.
She maintained that both she and the Patient were surprised at learning of the Guardianship Order.
The Patient informed her that she was informed by her tenants that her home was for sale. She maintains that the Respondent is not acting in the best interest of the Patient and has not given full and frank disclosure to the Court as required by the Act.
The Applicant denies that the Respondent and Patient shared a close relationship. She maintains that she provided excellent care for the Patient and no hurt ever came to the Patient while in her care. Between 2017 to 2022 when the Patient was hospitalized and underwent several surgeries, she was always there to care for the Patient. The Respondent has made no mention or reference to that time period when her mother was in her care.
During the time when the Patient was ill and incapacitated, she was responsible for managing the affairs of the Patient. She had preserved her assets at RBC, the Teacher's Credit Union and Scotiabank. The apartments owned by the Patient were fully rented except for one and they were used to assist with the Patient's upkeep and care. She also confirmed that the Patient gave her permission to collect her rents from the tenants as she was concerned about her assets.
JB is the niece of the Patient. She recalled that the Applicant and her family, along with IJ, and her New Covenant Church family were principally responsible for caring for the Patient as she recovered from her surgery. She does not recall the Respondent caring for or spending any quality time with the Patient.
She recalled the Patient travelling to Long Island with the Applicant. She also averred that she went with the Applicant to visit the Patient. She stated that the Patient's living conditions were disappointing. There was no food or cleaning supplies in the house.
She was present when there was the negative exchange between the Applicant and Respondent and when the Applicant threatened the Respondent. She accompanied the Applicant to the Police Station where she made the complaint concerning the threat.
The next day they were advised of the Guardianship Order and the Patient had told the Police that she had no knowledge of the Guardianship Order.
She and the Applicant were advised the following day by the Police that they had 1 hour to leave the apartment and reminded them of the Guardianship Order.
She found it shocking that there was some distance between where the Applicant lived and where the Patient lived.
She was hired by the Respondent to be the caretaker of the Patient in February 2021.
Her duties included cooking, cleaning, taking the Patient for walks and taking her to the clinic.
She was concerned of the level of care and interaction that the Patient received from the Respondent. The Respondent only visited the Patient once a week. The Respondent neglected to provide the Patient with needed items.
Initially the Respondent and her family would visit frequently but the visits ceased except for a brief visit to drop off supplies and her salary.
She was told by the Respondent never to bring the Patient when they were out driving, to her house. The Respondent is usually cruel, rude and disrespectful to the Patient. She had also been instructed not to allow the Patient to communicate with anybody including the Applicant.
She was concerned with the distance between where the Respondent lived and the Patient lived.
In October of 2021 the Applicant and her niece visited the Patient who was happy to see them. The Respondent became very angry when she learnt of their visit and threatened the Applicant. She accompanied the Applicant to the Police Station to report the incident.
He is the Senior Pastor of New Covenant Baptist Church where the Patient was a member. After her surgeries he visited with her regularly.
His communication with the Patient ceased when she travelled to Long island.
The Respondent claims that she and the Patient shared loving mother- daughter relationship as she was growing up. However, a rift developed for a short while when she got married but as the years past, the Patient overcame her disappointment.
While the Patient was hospitalized in November 2020, the Respondent states that she was advised by the Applicant to not come to Nassau as her mother was in the hospital and they were not allowing anyone in the hospital. The Applicant also told her that she would take her...
To continue reading
Request your trial