Doreen Wayne suffers from dementia. Her son William was appointed as committee (trustee) of her estate by the BC Supreme Court, and wanted to obtain the file related to her affairs from her lawyers. The lawyers provided copies of Mrs Wayne’s will, enduring power of attorney and personal directive under the Alberta Personal Directives Act, but claimed solicitor-client privilege over the rest of the file. William wanted to see the legal advice that had been provided with respect to some inter vivos transfers of land which he now challenged.
Mahoney J of the Alberta Court of Queen’s Bench held that the a trustee under the Adult Guardianship and Trustee Act (AGTA) essentially steps into the shoes of the represented adult and therefore has access to the file created by the represented adult’s lawyer before the adult became incapacitated: Wayne v Wayne, 2012 ABQB 763. This in spite of the fact that the AGTA itself does not grant the trustee full access; on common-law principles, however, it made sense to the judge that if the personal representative (executor) or next-of-kin of a deceased person would be able to see the lawyer’s file and if, in BC at any rate, the representative of an incapacitated adult can waive that person’ s privilege, then William ought to see the privileged materials in his mother’s file – as long as this was necessary for the exercise of his duties as his mother’s trustee.
[Link available here].