October 18, 2017 By: Marcia Green
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This article originally appeared in the October 2017 edition of Fifty-Five Plus Magazine.

According to Statistics Canada, Canada has among the highest life expectancy in the world. Men can expect to live to the age of 79 years old and women can expect to live to the age of 83 years old. Planning for a secure and healthy future is vital as we live longer. One of the biggest mistakes you can make when reviewing your estate plan is not considering the possibility of incapacity.

Assigning a substitute decision maker with Powers of Attorney (“POA”) can be a useful tool to legally protect your long-term health and financial interests. Designating a POA for personal care may be appropriate if you or someone you love can no longer understand or appreciate their health-related decisions.

What are Powers of Attorney?

A POA is a legal document that grants one or more people, or an institution, the authority to make decisions on someone else’s behalf. Unlike your Will, POAs are effective when you are still living but are incapable of making your own decisions. There are two types of Powers of Attorney: POA for personal care and POA for property. This article focusses on Personal Care POA. As the “grantor” of the power of attorney, a person can assign or revoke a POA if they understand that they may need to have someone else make decisions for them. In particular, under a POA for personal care, the substitute decision maker can make decisions concerning your own heath care, nutrition, shelter, clothing, hygiene or safety.

When does a POA come into effect? What is the scope?

A POA comes into effect once the person is incapable of making a decision. In other words, when a person is not able to understand the information relevant to the decision or appreciate the consequences of the decision or lack of decision. In Ontario, assigning a new POA will revoke a previous one, unless the person specifically arranges for multiple Powers of Attorney.

The person assigned to make decisions on behalf of another person is called the “attorney”. An attorney can make decisions in regards to the grantor’s personal care, including a request for a capacity assessment or detaining and restraining the grantor in a care or treatment facility if it is necessary and reasonable.

How is mental capacity assessed?

There is a legal presumption that every person is mentally capable. To determine if a person is mentally incapable of making a particular decision then that person must undergo an assessment by a capacity assessor. A capacity assessor is a trained professional who has been designated by the Public Guardian and Trustees Office. This office has a list of certified capacity assessors in the province of Ontario. It is the capacity assessor who confirms that someone has capacity if they:

  • have an ability to understand information relevant to a decision; and
  • can appreciate reasonably likely consequences of a decision or lack thereof.

Your ability to understand includes the ability to process and retain facts long enough to make decisions. As long as there is consistency in your conclusions each time the issue is raised, being forgetful or a lack of experience is not enough to render a person incapable.

Your ability to appreciate relates to your ability to evaluate and weigh the risks and benefits of your options. This is often referred to as a person’s capacity for “reason”. It includes being able to realistically look at the outcomes of a decision, and being able to justify your choice. Emphasis is on the process of your decision, not the outcome.

A capacity assessor will also evaluate how you are coping with unmet needs and demands. The interview starts by learning whether you understand relevant information about your personal care. The capacity assessor will ask questions to understand your awareness, insight, and appreciation. If you fail the understanding part of the test, the assessor may not evaluate your ability to appreciate.

An opportunity to explain inconsistencies or unusual choices should be given. Reasoning, not behaviour, is judged by the assessor, who will determine whether you are knowingly and voluntarily inviting risks. Because there is so much on the line, it is wise to appoint one trusted substitute decision maker, with an alternate substitute decision maker in case of incapacity.

Avoid contentious and costly legal disputes

While there can be advantages of assigning a POA for personal care, you should be very careful about whom you choose, given the far-reaching effects of this decision.

Courts have the ability to require an individual to complete a capacity assessment, which can be necessary to ensuring proper personal care. Courts continue to exercise caution when capacity assessments are sought in relation to contentious family disputes, recognizing that the process can be intrusive and is often perceived as demeaning by the person subjected to them.

Two recent cases in Ontario underscore how capacity assessments can be used by opposing family members to control and/or pilfer from vulnerable and elderly relatives.

In Urbisci v Urbisci, a 61-year-old woman’s estranged husband and her daughter sought an extensive court order to have the woman’s capacity assessed. They claimed that the woman’s seizures, caused by her incurable brain tumour, meant that she no longer had capacity. The woman, supported by her other daughter, opposed the order successfully after a bitter and contentious legal battle. Detailed affidavits were submitted that aired their family’s personal grievances but largely ignored the relevant legal issues.

In another decision of Abrams v Abrams, the capacity of a successful 90-year-old man and his 85-year-old wife were called into question by their children. The couple had been married for 58 years and had three adult children, two of whom were in a vicious dispute with a third sibling. The woman had assigned her elderly husband as POA for property, and a daughter that lived abroad as POA for personal care.

The two siblings contested the POAs, including a “right to die” clause included in the mother’s Will by the daughter living abroad. The other siblings told the court that their mother would never consider that choice, given their mother’s strict adherence to their Jewish faith. A doctor determined that the woman had mild to moderate dementia due to Alzheimer’s disease, but that she still had some capacity in certain situations. She was considered incapable of managing her finances, or retaining and instructing counsel.

A court declined the contesting siblings’ request to change the POA. The judge held that she was partially capable of managing her personal care, and capable of giving and/or revoking her POA. Though the elderly man’s health was declining, the judge decided that it would be more appropriate for him to continue as his wife’s POA.

Unfortunately, many cases result with people being assigned a POA that they would have never considered or wanted to be their substitute decision maker. In order to avoid costly and contentious legal proceedings, it is important to be proactive and consider appointing substitute decision makers of your choice in case of incapacity.

Do you suspect that you or your loved one may no longer have capacity?

Vulnerable groups include, but are not limited to, people with:

  • Dementia, Alzheimer’s or other degenerative diseases
  • Developmental and cognitive disabilities
  • Delusions, delirium or intoxication
  • Parkinson’s disease, multiple sclerosis (MS) or brain injury/trauma

Indicators that you or your loved one might be losing their capacity for personal care:

  • Forgetting to take medications or failing to follow medical advice
  • Letting strangers in the home
  • Neglecting hygiene or diet
  • Failing to properly respond to hazards or emergencies
  • An inability to find a way home if lost

Some of the consequences of these situations can include:

  • Being the victim of physical abuse
  • Revolving door admissions into the hospital
  • Homelessness
  • Falling, physical injuries, or death.

Capacity can fluctuate over time and circumstances

Determining mental capacity is not a medical or psychiatric diagnosis per se. It is a legal concept that varies depending on the relevant facts and the jurisdiction. In other words, the assessment of mental capacity is not universally attributed to that person. A person may have capacity in regards to some decisions, but not others.

Ontario law says that a person is incapable of personal care if they are unable to understand information relevant to making a decision about their health care, nutrition, shelter, clothing, hygiene or safety, or if they cannot appreciate the likely consequences of making (or not making) a decision.

If you require a capacity assessor, contact the Office of the Public Guardian and Trustee of Ontario (OPGT). Capacity assessors are trained and selected by the OPGT. The list of current capacity assessors can be found on their website, at: www.attorneygeneral.jus.gov.on.ca/english/family/pgt/. Capacity assessors have varied costs and expertise, based on the regulated profession to which they belong.

If you would like to appoint a POA or suspect that a POA is neglecting their duties contact our Wills and Estates Practice Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.