Losing control

When George Kinsman left a Winnipeg hospital in 2022, he had no idea he was walking out a man who had lost his legal right to make his own decisions.

The 73-year-old retiree receives more than $2,000 monthly from the government for his pension and old age security payments but learned the money is no longer his to spend.

Kinsman is one of over 2,700 people whose personal and financial decisions are under the complete control of the public trustee because a doctor deemed them mentally incompetent.

The Public Guardian and Trustee of Manitoba sets a budget for his phone, internet and cable. He isn't allowed to have a cellphone or a long-distance plan, meaning he can't phone his only son, who lives in England.

"I feel like they have me by the throat, and they just keep holding on and holding on. I can't do anything," Kinsman said, speaking to CBC News in his cramped bachelor apartment. 

All his mail is redirected to the public trustee. He is given $140 a week to spend on things such as food for his cat, groceries and cigarettes.

He can't consent to the release of his personal information, get a credit card or cash a government cheque. 

A CBC investigation has found Manitoba's public trustee system has a series of gaps that make it easy to fall into public guardianship, but difficult to get out. 

"I would like the public to know that this craziness exists, that you can wake up as an individual and they own you from then on," said Kinsman.

Public guardianship is often referred to as a "civil death" by experts in the field, because once you are in the system, you lose your rights and have no control over your finances or personal health decisions.

Instead, an administrator is assigned at the public guardian office who makes those decisions.   

"Losing control over one's finances is massive," said Brandon Trask, an assistant professor who teaches a law and disability course at the University of Manitoba's faculty of law.

Trask argues the public trustee regime could benefit from a "comprehensive" review of its systems.

"To have a major aspect of one's independence put into jeopardy, or indeed taken away by the state you know, that should raise concerns," he said.

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Manitoba's chief provincial psychiatrist says guardianships can protect people from things like elder abuse, or from having their monthly government cheques used by other people.

They also protect vulnerable people who are mentally incapable of making proper decisions by ensuring their rent and bills are paid, and allowing medical professionals to make decisions for patients who have dementia or are unable to give consent, Dr. Jim Simm told CBC News.

"If somebody is unable to care for themselves, repeatedly and continuously, I think as part of a kind and caring society, we have a responsibility to assist people, he said. "And sometimes that means taking over their assets."

The process begins with a doctor's examination. If the doctor deems a person mentally incapable of making financial and personal decisions, they sign a one-page report with room for about five sentences describing why.

 The person deemed incompetent then receives a notice saying they have seven days to respond. There is no hearing or legal representation, and the final sign-off is by the chief psychiatrist who doesn't even examine them.

The letter is basic and says the recipient has been found mentally incompetent, but it doesn't explain that their rights are about to be taken away.

Once a person is under the guardianship of the public trustee, they enter a complex and difficult to navigate system, where they're served by an understaffed and overworked agency.

George Kinsman's experience began in the summer of 2022, when he fell in his apartment and was unconscious for three days before someone found him lying on his apartment floor.

The ordeal left him with bedsores, and medical records show he had a urinary tract infection, an enlarged prostate, COVID-19 and muscle deterioration. He had also been diagnosed with Parkinson's disease a year earlier.

He was hospitalized for seven weeks. When he got out, he learned a family physician had signed a certificate of incapacity the first step needed to declare someone mentally incompetent. 

"I didn't know what I was getting when they said they were going to give me somebody to help me. I didn't know what it meant, so I signed the paper," he said. 

Kinsman's certificate, dated Aug. 25, 2022, said he had problems with memory, along with visual and auditory hallucinations. 

The doctor who signed it said Kinsman had been making poor financial decisions and was gambling.  The doctor said he had ignored his pressure sores, and noted Kinsman owned a cat, which was against the rules in his apartment block.

"So if you have a cat, does that mean you're crazy? I hope not, because [if so, there are] a lot of crazy people in this building," said Kinsman.

He said the pressure sores were a direct result of his fall and the hallucinations were due to medication he was taking while in hospital. 

He gambled once, lost too much money and never gambled again, he said.

Kinsman has long argued he doesn't belong under the public trustee and had himself medically reassessed in June 2023.

WATCH | George Kinsman's emotional reaction to a question about his cognitive assessment:

The doctor who reassessed him said he appeared alert and co-operative. 

Kinsman's thought processes were coherent, organized and linear, according to the document provided to him by his doctor.

Though he had a mild neurocognitive disorder, he scored within normal ranges during a cognitive assessment and knew, for example, there was a war in Ukraine and that former U.S. president Donald Trump was facing legal difficulties, the doctor said.

"The patient was able to demonstrate a reasonably informed understanding of his current medical issues, current care needs and his finances," the assessment stated.

Kinsman "had likely benefited from the structure, routine and adequate nutrition afforded by his current living circumstances," the doctor wrote.

Yet nothing more happened. 

Knowing he's still under guardianship, Kinsman finds it hard to read the reassessment.

"I felt like I was getting beat up mentally," he told CBC before starting to cry.

They do whatever they want, whenever they want to. I was outraged, infuriated that they could get away with this. If it's happening to me, what are they doing to the other people?

Kinsman isn't alone in his struggle. 

Last December, Winnipeg musician Paul Cameron Miller told CBC about his struggle with the complexities of getting out of guardianship.

After that story was published, dozens of people reached out to CBC with their own stories, including Boyd Noble.

The 74-year-old retired teacher is part of a distinct group of people he got out of public guardianship.

"If it wasn't for my friends and their generosity and probably wealth, I wouldn't have survived," he said.

In the past six years, more than 2,000 people have been placed under guardianship because they were deemed mentally incompetent, according to data from the provincial government.

On average, less than five per cent of people placed under guardianship ever get out, it shows.

Similar to Kinsman, Noble was committed following a medical episode.

In the summer of 2022, he noticed he was easily fatigued and forgetting things. One day, he fell as he was picking up his granddaughter.

When he woke up he was in the hospital, diagnosed with COVID-19. He was told by a psychiatrist he was being placed under guardianship because he was mentally incompetent.

Noble admits he was behind on bills and owed money on his taxes. His wife had died a few years prior and she was the primary bill payer. 

He worked as a substitute teacher before COVID shut down the schools, leaving him with no income other than his pension. 

His memory of his time in the hospital is foggy. He had trouble walking and knew his brain wasn't functioning normally. Hospital staff told him he had dementia, but as the weeks went on and he was eventually moved to a personal care home, the fog started lifting.

"I don't think they thought it was going to get better. They thought that I was what I was," he said.

As his condition did improve, he began to question why he had no access to his money. The public trustee selectively chose which of his debts to pay and how much and he had no say in the matter, he said.

He said getting his trustee on the phone was impossible, and he had no idea how to navigate this new life.

"They took all my money. They closed all my bank accounts. Didn't give me any heads up what I had to do," he said. 

"They didn't tell me what they paid. They didn't tell me what they had. They didn't give me even an allowance. Again, [if] it wasn't for my friends, I wouldn't have had a dollar in my pocket."

Unlike many people CBC spoke to, Noble had a support system who knew what to do. A lawyer and a physician friend helped him get reassessed and in September 2023, he was released from guardianship.

Experts say one of the biggest flaws with the public guardianship structure is people are not given the right information about how to get out.

It involves getting a reassessment or hiring a lawyer to fight it in court. Both can be barriers for low-income people who don't have a family doctor.

Getting that reassessment and "to a place to get your rights back can be long," said Lisa Engel, an associate professor in the department of occupational therapy at the University of Manitoba.

"There's a lot of inequities about who gets the supports to be able to get their rights back."

A provincial special operating agency, the Public Guardian and Trustee, is responsible for making the decisions for someone who is declared mentally incompetent. 

But the process begins with the doctor's assessment. Often, an occupational therapist will be asked by the doctor to help make this decision. 

Sofia Salsi was once one of those therapists at a hospital in Winnipeg.

Her job was to help people who have difficulty carrying out day-to-day activities because of a disability, illness or other conditions. At the hospital, Salsi's role would also include ensuring they had a safe discharge plan. 

Salsi, who went to school in Quebec, said she was never trained to assess whether someone's legal rights should be taken away, despite that being a frequent ask. 

"Why is this such a big part of my job, and I don't have the training for it?" she said.

It is a decision she knows can have permanent consequences under the provincial Mental Health Act, there is no end-date mechanism to force a review of a guardianship order.

As an occupational therapist who works with experts across Canada, the U of M's Engel said in her experience, there is little training for any health professionals when it comes to assessing mental capacity.

"No one is coming out well-trained in this area," she said. 
 

She pointed to people specially designated and trained as capacity assessors in some provinces, like Ontario, as a positive step.

Salsi's experience led her to quit her job and work toward a PhD examining how occupational therapists can be better trained, and how the system can better use therapists when determining whether someone is mentally incapable.

Her research will also look across the country to see how other provinces handle public guardianship sometimes with better results, said Salsi.

"Manitoba seems to need a lot of updates and changes."

For the last six years, the public trustee has been concerned about the increasing number of people under guardianship, the increased complexity of their files and an "unacceptably high rate of turnover in staff."

That's according to annual business plans submitted by the agency, which were obtained by CBC through freedom of information laws. 

In the past 10 years, the number of mental health clients under guardianship has increased by nearly a third from 2,097 in 2013-14 to over 2,700 today.  

Along with the public trustee's mental health clients, there are another 1,200 clients who are living with an intellectual disability, who come under guardianship through a different process and legislation.

The combined assets of all of the trustee's clients are worth over $180 million.

The public trustee also makes, on average, about $7.8 million a year in revenue because it charges each person under guardianship for its services.

Noble said during his time, he paid the agency more than $3,500.

The latest annual report shows the public trustee has one case manager for every 172 mental health clients.

The agency's staffing levels were stagnant for years, before adding six more employees, about a five per cent increase. Roughly 12 per cent of its positions are vacant, according to the agencys latest business plan.

The nine people CBC spoke to about their experience with public guardianship all said the same thing: their trustee rarely answered their phone or returned calls, and it was common to learn the person they thought was their current trustee no longer worked there. 

"It's terrible," said Noble. "I went through about five guardians and they never met me."

WATCH | It's just like jail, says Boyd Noble:

The agency used to track how often its administrators physically saw clients but stopped in 2016. When it was tracking, workers only saw about 14 per cent of clients per year.

The agency says it represents "thousands of adult clients" at any given time and acknowledges staff members "do not know most of them very well or at all," according to its client guidebook.

"Their mandate is to involve the person and to understand their values," said Engel, "but they don't have enough staff to be able to spend that time to make sure that they're understanding those values."

Darren Eliass, 62, has been considered mentally incapable by the province for 14 years.

He says he entered the system following a dispute with his neighbour over property lines.

He lives in a cramped bungalow in the rural municipality of St. Clements, northeast of Winnipeg. He has a dog, a work shed and more than three hectares of land. His mortgage was paid off years ago, after his mother died.

His neighbour argued he couldn't take care of himself because he only has a Grade 11 education, Eliass told CBC. 

But Eliass sees it differently. He may not be educated, but he has been working with his hands his whole life.

"I'm 62 and well capable," he said. "I work everything around here. The table saw behind you. The drill presses. The welder that you see there."

But the public guardian says he can't be trusted with his own finances.

"I am depressed almost every day," Eliass said of his life under the public guardian.

He doesn't know how much money is in his account and the trustee has never given him any paperwork to show his monthly expenses or his annual budget. He's asked for a statement of account but hasn't received one. He has no idea which of his bills the trustee is paying.

All he knows is $369 is deposited into his bank account each month. It's the only money he can access. He sells firewood on the side of the road to make extra money so he can buy groceries or food for his dog.

WATCH | Darren Eliass working in his shop:

The public trustee says guardianship is supposed to be a last resort, but experts and those in the system say it's too rigid. 

"Right now, all we have is a very dichotomous option. You either can make your decisions or you get someone else to make them," said Engel. 

People might be making poor financial decisions, but that doesn't mean they're mentally incapable of caring for themselves, she said.

Offering someone a course on financial literacy or a place where they can get help paying their bills could help them without completely taking away their decision-making powers, said Engel.

In a statement to CBC News, a spokesperson for the provincial government said every clients situation is "unique," and there are multiple factors that go into decisions made by the public guardian.

Staff work "tirelessly to ensure they are making decisions that are in the best interests of the clients," the spokesperson said.

"There are cases where the client has created a situation where there is no good answer and the [public guardian and trustee] does its best to create a path forward."

Kinsman, meanwhile, says he got a call from his public guardian out of the blue after CBC had asked the agency about some of his issues with public guardianship. She walked him through how to get out of his guardianship, Kinsman said.

He needs to make an appointment with his neurologist to get reassessed. He called his doctor and found out he won't be able to see him until December.

But once that happens, he thinks he will be finally free. 

"It would be incredible," he said. 

Credits

Writers: Kristin Annable and Caroline Barghout

Photographers and videographers: Travis Golby, Warren Kay, Prabhjot Lotey and Gary Solilak

Editor: Joff Schmidt