As an attorney for personal care, deciding between placing a loved one in a retirement residence or a long-term care facility is a significant and often difficult responsibility. This decision becomes even more complex when joint attorneys cannot agree on what is in the best interest of the grantor. In today’s blog, we examine this scenario in detail by analyzing the recent Ontario Superior Court decision in Marcantonio v. Marcantonio.
Understanding the Options: Retirement Residence vs. Long-term Care Facility
For clarity, a retirement home is a private, self-funded option for seniors who can manage their own care but may require some assistance with daily tasks. Unlike long-term care homes, which are designed for individuals needing constant supervision, retirement residences cater to those seeking independence in a supportive environment. While they do not typically provide 24-hour nursing care, retirement homes are required by the Retirement Homes Act to offer at least two of thirteen specific services, such as meal preparation, help with bathing, dementia care, medication management, incontinence care, or access to healthcare professionals like doctors, nurses, or pharmacists.
In contrast, long-term care homes, often referred to as nursing homes, are intended for seniors who need more comprehensive assistance with everyday activities, such as eating or bathing. These facilities provide 24-hour nursing and personal care, making them a better fit for those who struggle to manage their care independently.
Case Analysis: Marcantonio v. Marcantonio
The case involved three siblings, the Applicant, the Respondent, and their sister who was non-represented but supported the Application. They were all joint attorneys for property and personal care for their 86-year-old mother who was recently deemed incapable of making her own decisions. After a capacity assessment in November 2023 and February 2024, it was reported that she had been diagnosed with Alzheimer’s disease, post-traumatic stress disorder, and dementia.
The Applicant sought an urgent motion to move their mother into a memory care suite at a retirement residence, while the Respondent opposed this, arguing that their mother should be placed in a long-term care facility within the Italian community, where she would be cared for by Italian-speaking staff.
As such, the issue to be determined on motion was whether the mother should be moved into a retirement residence or a long-term care facility?
The Law
The Court referred to:
- Section 39(1) of the Substitute Decisions Act provides that if an incapable person has a guardian of property or an attorney under a continuing power of attorney, the court may give direction.
- Section 68(1) of the Substitute Decisions Act provides that if an incapable person has a guardian of the person or an attorney under a power of attorney for personal care, the court may give direction.
Justice Smith noted at paragraph 12 of the decision that while an application for directions is meant to provide guidance and direction by the court, in exceptional cases where an impasse may exist, the court may use this procedure to decide for the parties, in the best interest of the incapable person: Burnat v. Burnat, at paras. 23 to 25.
The Decision
The Applicant argued that a retirement residence was in their mother’s best interest, providing consistent care, social interaction, and a structured routine. However, the Respondent contended that long-term care was necessary for their mother’s safety, given her advanced dementia, major neurological disorder, and deteriorating condition, which included challenging behaviours such as night terrors.
The Judge concluded that there was insufficient evidence to determine whether a retirement home could adequately meet the mother’s specific medical and behavioural needs or whether her condition might deteriorate to the point where a move to a long-term care facility would be inevitable.
In the absence of independent evidence to determine which type of residence is most suitable for the mother, the Court decided that the impasse between the parties must be resolved by selecting the attorney for personal care who is best positioned to understand the mother’s unique needs and wishes.
Based on the evidentiary record, the Court found that the Respondent, due to her close relationship and long history of caregiving, was the most appropriate person to make this decision. As a result, the Court ordered that the Respondent shall be the attorney for personal care, responsible for selecting the most appropriate long-term care facility.
Thanks for reading and have a great day!