Court Proceedings Involving the Substitute Decisions Act and the Health Care Consent Act – Episode #155
This week on Hull on Estates Diane Vieira and Bianca La Neve discuss some issues they’ve been encountering concerning court proceeding involving the Substitute Decisions Act and the Health Care Consent Act.
They talk about the need for a capacity assessment and who you go to for a capacity assessment, the issue of notice periods and the right of an incapable person in proceedings under the Substitute Decisions Act.
Feel free to send us an email at firstname.lastname@example.org or leave us a comment on the Hull on Estates blog.
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Diane Vieira: Hello and welcome to Hull on Estates. You’re listening to episode 155 on Tuesday, March 24th, 2009.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Diane Vieira: Hi and welcome to another episode of Hull on Estates. I’m Diane Vieira.
Bianca La Neve: I’m Bianca La Neve.
Diane Vieira: If you want to be heard on Hull on Estates, you can participate by leaving us a comment. You can e-mail us at email@example.com or you can visit our blog at estateslaw.hullandhull.com. Hi Bianca.
Bianca La Neve: Hey Diane.
I thought today…it seems that lately you and I have been dealing a lot with Court proceedings and matters involving the Substitute Decisions Act and the Health Care Consent Act and so I thought we’ve been spending a lot of time talking to each other on various files about these matters. I thought maybe we’d review today some of the issues we’ve been encountering such as the issue of the need for a capacity assessment and who you go to for a capacity assessment and the issue of notice periods and the right of an incapable person in proceedings under the Substitute Decisions Act.
Diane Vieira: Yeah, I think that would be something that’s important to discuss. A few weeks ago Natalia and I discussed a bit of the issue of capacity when it came to attorneys of property for personal care but I think today we’ll probably speak more broadly than on that specific subject.
Bianca La Neve: Good idea. So capacity really is the focal point of the Substitute Decisions Act. The idea is, I guess, that a capable person makes decisions for themselves and so if you’re incapable, you’re either going to need a Power of Attorney or an attorney for property or personal care, like you stated, or you’re going to need a guardian of property. So in the Substitute Decisions Act in terms of getting capacity assessments, there are actually guidelines in place for retaining somebody to do a capacity assessment. They’re called capacity assessors in the Substitute Decisions Act.
Diane Vieira: Yes and they can be health care providers, physicians, psychologists, social workers, occupational therapists and nurses who have specific training. They’ve undergone specific training by the Ministry of the Attorney General and they’ve maintained their qualifications through continuing education. And the reason you want to ideally get a capacity assessor is because they’re familiar with the process.
Bianca La Neve: So like you said Diane, a capacity assessor has specific training to conduct an assessment under the Substitute Decisions Act so remember that’s where their training and their guidelines come from. Now as the Substitute Decisions Act we know contains certain legal definitions of incapacity to manage property and incapacity respecting personal care. And a capacity assessor will be trained to refer to the SDA and to use the forms that are actually prescribed under the SDA for the reporting of capacity assessments.
Now just as a point before we go into a bit more of capacity assessments, the alternative to using a capacity assessor is to seek the opinion of a family physician.
Diane Vieira: Yes, if a capacity assessor is not available or you just have access to an opinion of a physician, such as the family physician, that’s another opportunity to get an assessment. Then again, they may not be familiar with the process and as a lawyer, you have to familiarize them and guide them in accordance to the Substitute Decisions Act itself and the legal tests.
Bianca La Neve: So what we do is we usually, when we ask a family doctor or even a psychiatrist or other specialist to conduct a capacity assessment, we usually give them a letter where we set out what we think the guidelines are. We ask them a specific question such as does this person in your opinion have capacity to give a Power of Attorney? Or does this person have capacity to make a Will etc.? And then in our letter we also outline what the legal test is and what should be included in the written opinion. Almost like setting out the parameters for them to look for in their assessment.
Diane Vieira: And just another note. If you would like to look at the guidelines for assessing capacity they are available on the web, the Attorney General’s website under the PGT website as well. And you can get a lot of information there.
Bianca La Neve: Now the guidelines, like Diane mentioned, are useful. But remember they only address assessments that are conducted under the Substitute Decisions Act and these are again assessments relating to capacity to manage your property or capacity to make personal care decisions. And we both encountered other situations where capacity assessments are called for, such as when we’re looking at giving or revoking Powers of Attorney for property and personal care, or making Wills, instructing counsel; even the capacity to marry and to divorce. So remember those are other situations. These situations are not covered by the Substitute Decisions Act and you’ll need to determine whether a capacity assessor is the appropriate person to conduct the assessment in these types of situation.
Diane Vieira: There’s a provision under the SDA to compel an assessment and the Court may, on a motion or on its own initiative, compel an assessment. But to do so, you need to meet two conditions and I’ll refer to the Ontario Court of Appeal decision Neil v. Pilialo which is a 2001 decision. In order to compel an assessment, an SDA proceeding where capacity is at issue and there has to be reasonable grounds to believe that the person is incapable.
Bianca La Neve: Now just because you meet these two conditions, so basically you have to have a guardianship or other SDA-related proceeding underway, and you have to show reasonable belief that the person is incapable. Just because you meet those two conditions, doesn’t mean the judge will automatically order a capacity assessment. So in a case of Flynn v. Flynn, it’s an unreported Ontario decision, 2007, the Court actually held that the two conditions weren’t enough. The Court also had the discretion to look at the merits of the application itself before ordering an assessment. So what they said was, the Court noted that a capacity assessment is intrusive and is demeaning to the person being ordered to be assessed. At the very least, the proceeding is a serious one to be tried and so the Court should look at the merits of the overall proceeding. And in that case, in Flynn v. Flynn, the judge actually held that there was no substance to support an application for an assessment.
Diane Vieira: And I think that’s an important point. Getting an assessment, especially when you’re compelling one, can be very hard for everyone involved: the capable person, other family members. So if you do bring a guardianship application, I think you would have to reach the conclusion that this is a necessity.
Bianca La Neve: Yes and make sure that you can meet your case in front of a judge. Now when you’re applying for guardianship in the SDA, it’s sometimes forgotten that when you’re serving your application record, that you have to serve the actual person whose capacity is at issue. So let’s say you’re seeking guardianship of Mom, you might remember to serve all your brothers and sisters and perhaps even your Dad, but you forget to serve Mom herself. And so an incapable person under the Substitute Decisions Act has the right to receive notice of any application that affects their capacity.
Diane Vieira: Yes, often we serve an incapable person and it might go to an old age home, etc. You have to make sure the person gets a copy of that application. What usually will happen is someone from the care facility may call your office and say I received this, what do I do with this? And you would say, leave a copy with the incapable person.
Bianca La Neve: And we’ve also had situations where, let’s say its sort of a friendly proceeding where perhaps some family members want to stop being guardians of property or personal care for whatever reasons and other family members what to be appointed and its all done on friendly terms, that you can have one of the family members actually deliver the application record to the incapable person themselves and then they can swear the necessary Affidavit showing that the incapable person actually received notice of the application. And the incapable person has to be told of their right to seek legal representation and also their right to seek to object to the guardianship application.
Diane Vieira: If you look at Section 3 of the SDA Act it deems the incapable person has the capacity to retain and instruct counsel. So this in the Act shows how important it is for that person to have legal representation.
Bianca La Neve: Now the role of Section 3 counsel isn’t to substitute their own ideas or judgment for that of the incapable person, regardless of whether their client who is the alleged incapable person lacks judgment or capacity or seems to be lacking the ability to provide even simple instructions. The role of a Section 3 counsel is to explain the proceeding to the alleged incapable person to the best of that person’s ability to understand it and to attempt to get at that person’s wishes and advise the Court of those wishes. And that way you can ensure that the alleged incapable person, no matter how incapable they may be and lacking in the ability to provide clear instructions, at least you’ve ensured that they’ve had some procedural fairness and also you’ve ensured a Section 3 counsel that the Court has before it a full evidentiary record which includes the wishes of this incapable person.
So those are just a couple of issues that Diane and I have been experiencing recently in our practice and we thought it would be a good idea to review them in this podcast. Again, as Diane mentioned at the beginning of our podcast, if you have any comments, questions or concerns, please e-mail us at firstname.lastname@example.org or visit our blog at estatelaw.hullandhull.com. Thanks again Diane.
Diane Vieira: Thank you.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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