Author: Sydney Osmar

07 Oct

Modernizing Ontario’s Justice System, Probate Edition: Filing by Email

Sydney Osmar Estate Planning, In the News, Wills Tags: 0 Comments

An exciting announcement (for those in the field of wills and estates) came out of the Superior Court of Justice on October 6, 2020. There has been an amendment to the Province-wide Consolidated Notice to the Profession, Litigants, Accused Persons, Public and Media which provides for the electronic filing by email of probate applications, supporting documents, and responding documents with the Superior Court of Justice.

The email address for the court location in which the materials will be filed can be located here.

With regard to filing by email, the amendment provides the following guidance:

  • The application form and supporting documents (affidavits, consents, proof of death, etc.) should be submitted by email only;
  • Original documents filed in support of the application (i.e. wills, codicils etc.) and certified copies must be filed in hard copy by mail or courier to the SCJ location where the application was filed or provided at the court office;
  • Estate administration tax payments and any filing fees must be sent by mail or courier to the SCJ location or provided at the court office;
  • Certificates of Appointment of Estate Trustee will be electronically issued and delivered by email to the address provided by the applicant; and
  • Applicants must complete a new Information Form (located in the consolidated notice which is linked below) and email it to the court together with the probate application.

Probate applications filed prior to October 6, 2020 can be resubmitted to the court by email, which will allow Applicants to keep their place in the original queue while providing for the ability to receive electronic issuance of the Certificate of Appointment of Estate Trustee.

The amendment does not apply to estate litigation documents, which should continue to be filed through the Civil Submissions Online portal.

For further details on the amendment, including the new Information Form, and the SCJ’s specific requirements regarding the form of emails when filing for probate by email, please see here.

It appears that this amendment will not only provide for the streamlining and ease that comes with access to electronic filing (especially in a COVID-19 world), it may also bring the possibility of having applications from higher volume court locations processed by staff in lower volume court locations to assist those that may be currently experiencing backlog.

Thanks for reading, and happy filing!

Sydney Osmar

06 Oct

N.S. Court of Appeal and Medical Assistance in Dying – Appeal Dismissed

Sydney Osmar In the News Tags: 0 Comments

I recently blogged on a case arising out of Nova Scotia, addressing the question of whether or not a third party can block an eligible person from accessing MAID (Medical Assistance in Dying).

An elderly couple, previously referred to as X and Y, now identified as Katherine Sorenson and Jack Sorenson, were engaged in a heartbreaking dispute – Mr. Sorenson, who has COPD and has been found eligible to access MAID, wants to die, and his wife, Mrs. Sorenson, does not want to let him.

In July, 2020, Mrs. Sorenson brought an application, arguing that her husband did not meet the eligibility requirements for MAID. Shortly thereafter, she sought an interlocutory injunction to prevent the MAID procedure from going ahead, a request that was rejected by Justice Peter Rosinski. Mrs. Sorenson appealed her decision to the Nova Scotia Court of Appeal.

That appeal was heard at the end of September, and the unanimous decision was rendered October 2, 2020. The Court found that it has no jurisdiction to determine eligibility for medical assistance in dying, including whether an individual has the capacity to make decisions about end-of-life treatment, as those decisions should be left to approved healthcare assessors. In reaching this decision, the Court explained that the legislative history giving rise to the Criminal Code amendments that permit MAID, establishes that Parliament considered, and rejected, a role for judges in the pre-approval or review of MAID eligibility assessments. In doing so, Parliament made clear that the role rests with approved healthcare assessors.

Further, while the Court agreed with Mrs. Sorenson, that there are a variety of contexts where the courts have the ability to assess whether individuals have capacity (with regard to decision making surrounding property and personal care, for example), courts simply do not have the institutional capacity to review challenges to eligibility assessments “in a manner that respects the urgency inherent in a MAID context.” The court saw this matter as a clear example that demonstrates a scenario where an individual, having already been found eligible for MAID (which includes experiencing enduring suffering), would be forced to wait extended periods of time, by virtue of the involvement of the court. This would include waiting on the outcome of production motions, discoveries, and court hearings where health professionals and others are required to testify, among other procedural steps.

The Court ultimately determined that Mrs. Sorenson failed to raise a justiciable issue, and dismissed her appeal. However, after providing this conclusion, the Court provided further comment on Mrs. Sorenson’s standing, determining that she did not have private or public standing to challenge Mr. Sorenson’s MAID eligibility assessment. The Court held that while, as his spouse, Mrs. Sorenson undoubtedly loves Mr. Sorenson deeply, and wants what she feels is best for him, “…those feelings do not give her standing to challenge the determination that he meets the eligibility criteria for MAID…the Supreme Court of Canada in Carter recognized personal autonomy in medical decision-making was to be respected and protected.” Therefore, the Court concluded that permitting Mrs. Sorenson standing to question the outcome of Mr. Sorenson’s MAID assessment, would fail to acknowledge this fundamental right of her husband.

To read more about this decision, as reported by CBC, see here, and as reported by The Star, see here.

Thanks for reading!

Sydney Osmar

05 Oct

Separating wheat from the chaff: an ode to page limits

Sydney Osmar Litigation Tags: , , 0 Comments

How many pages are too many pages? In what circumstances will the Court of Appeal grant leave to a party to file a factum exceeding 30 pages in length? A recent decision of the Court of Appeal addresses these questions within the context of a request for leave to file a 500 page factum (300 of which comprised of appendices).

In OZ Merchandising Inc. v Canadian Professional Soccer League Inc. et. al., the proceedings had been ongoing for many years, the trial was lengthy, and there were numerous grounds of appeal (60 or so), however, the Court failed to see the justification for a factum outside the prescribed 30 page limit. In coming to its decision, the Court highlighted the well-established principles and relevant considerations, when determining whether or not an extension of the facta page limit should be granted. These points are summarized below:

  • The maximum length of appellate facta is 30 pages. This is not a suggestion or a starting point;
  • The maximum page length has been set with a view to reasonably complex cases, such that simpler matters can and should be dealt with in much shorter factums;
  • The purpose of the 30 page limit is to “focus counsel on the issues and not have a factum that goes on, and in fact, wanders”;
  • Leave of the court is required to file a factum beyond the 30 page limit;
  • Leave is exceptional, granted sparingly and only in special circumstances;
  • While a party must be permitted to present its whole case effectively, this does not detract from the need for conciseness and the duty of efficiency to the court;
  • The overarching question, is “whether the extension is required in the interests of procedural fairness and justice to advise the other side of the issues in dispute so it can prepare properly for the appeal and to assist the division of the Court that hears the appeal to deal effectively with the issues”; and
  • The fact that an appeal raises important and complicated questions of facts or law, that there are numerous grounds for appeal, or that the proceedings have been ongoing for many years, do not automatically justify an extension of the page limit.

In concluding, the Court cited Chartier J.A (as he then was) in R v Henderson (W.E.), 2012 MBCA 93, stating that “Courts expect counsel to be of assistance to the appellate process…Counsel are expected to have sufficient confidence to prioritize their arguments, to separate wheat from the chaff and to provide fully developed arguments on what should be the real points for appellate review. Not only is this in the best interests of their clients; it is in the best interests of the administration of justice.”

In keeping it concise, thanks for reading!

Sydney Osmar

03 Sep

Medical Assistance in Dying: can a third party block an eligible person from accessing MAID?

Sydney Osmar Capacity, Elder Law, In the News, Public Policy Tags: 0 Comments

Previously, I blogged on Medical Assistance in Dying (MAID) and the changes to the Criminal Code proposed by Bill C-7, which sought to provide for assisted deaths where a natural death is not “reasonably foreseeable”. The changes would have included the potential to waive the requirement that late-stage consent be obtained immediately prior to MAID.

The proposed amendments contained in Bill C-7 sought to address the concern that people who qualified for MAID were faced with a difficult decision – ending their life earlier than they wanted so as to ensure they possessed the requisite capacity to consent to MAID, or, risking that should they wait to access MAID, they could lose capacity and therefore eligibility for MAID. This scenario was the reality of Nova Scotian, Audrey Parker, who campaigned heavily to change the late-stage consent requirement, however, ultimately accessed MAID earlier than she wanted so as to ensure that she would not lose eligibility as a result of declining capacity. Bill C-7 is now known as “Audrey’s Amendment”.

Parliamentary review of the Bill was scheduled to occur in June, 2020. However, with the global impact of COVID-19 and the current proroguing of Parliament, the Bill has yet to become law.

While we wait for Parliamentary review of the Bill, a new and novel question has been raised once again out of Nova Scotia – can you prevent someone else from accessing MAID, even when they have been found eligible under the law? This question has been raised in the context of an elderly couple – called X and Y — grappling with these issues – X wants to die, and his wife of 48 years, Y, does not want to let him. Y attempted to seek an injunction, preventing X from accessing MAID, though he had already qualified for MAID. X is concerned that the delay caused by Y’s filings could risk him losing capacity and therefore eligibility to access MAID – a concern that could be addressed if late stage consent could be waived. However, as Bill C-7 has yet to become law, the proposed amended provisions cannot assist X.

As reported by The Star, in seeking the injunction, Y must make a case for “irreparable harm.” From Y’s perspective, should the injunction fail, her irreparable harm is the death of her husband. From X’s perspective, going on living would be worse. A hearing in X and Y’s case was scheduled for August 26, 2020.

Jocelyn Downie, professor and the James Palmer Chair in Public Policy and Law at the Schulich School of Law at Dalhousie University has offered her opinion: “…it’s straightforward in law and what the answer should be, which is: No, a third party doesn’t get to go to court and prevent somebody from having access to something that the Supreme Court of Canada said we have a Charter right to access.”

We will continue to watch and keep our readers updated as this case develops.

Thanks for reading!

Sydney Osmar

31 Aug

Modernizing Ontario’s Justice System: MAG’s Pilot Project with CaseLines

Sydney Osmar Litigation Tags: 0 Comments

Further to the Superior Court of Justice’s Supplementary Notice to the Profession dated August 5, 2020, the Ministry of the Attorney General is rolling out a new pilot project: CaseLines.

The SCJ has described CaseLines as a “user-friendly cloud-based document sharing and storage e-hearing platform for remote and in-person court proceedings.”

The pilot project began August 10, 2020 for selected civil motions and pre-trial conferences in Toronto, with an aim to incrementally expand to other practice areas and court locations. According to the SCJ’s website, the goal is to have CaseLines implemented province-wide in all SCJ court locations by December 31, 2020.

The SCJ is encouraging the bar to pre-register for CaseLines by signing up here.

I have had the opportunity to attend the CaseLines information session hosted by the SCJ, as well as the CaseLines webinar hosted by The Advocates’ Society. Below, I have summarized some of the main takeaways:

  • Once a new matter is initiated, court staff will open a CaseLines file and email a link to counsel and/or any self-represented parties. If counsel have pre-registered they will have immediate access to the file. If they have not yet registered, they will be re-directed to the registration page;
  • Counsel will be able to add their staff to the case, so that anyone involved in the matter from their office can have access to the case;
  • All briefs and documents relevant to the matter that counsel intend to rely upon at the hearing can then be uploaded to the open file in CaseLines. You cannot edit documents once they have been uploaded, so if an error is noticed, the document should be deleted with the corrected version uploaded in its place;
  • At this stage, CaseLines is not yet integrated with the Justice Services Online Portal so all relevant materials must be filed in accordance with the Rules (either physically or through Justice Services) and separately uploaded to CaseLines;
  • When the documentation is uploaded to CaseLines it is scanned by OCR technology and page numbered such that key word searches can be conducted;
  • Zoom is integrated with CaseLines such that counsel will be able to direct the judge, or witnesses etc. to pincites in their materials. There are also functions that allow counsel and the judge to take notes directly on the uploaded materials. Users have the ability to adjust their settings so that only they can see the notes taken onto the materials, or, so that they can highlight a particular reference to draw the necessary parties to its attention;
  • Because this is a cloud based document sharing technology, counsel will now be able to upload all electronic evidence, including photos, videos etc. CaseLines also enables you to cull up the metadata for the electronic evidence to speak to its veracity.

Above is a summary of just some of the main takeaways from the information sessions I have attended. However, the functionality of CaseLines goes well beyond what is described above and I would encourage counsel to watch the SCJ’s recorded information session, which can be located here.

Thanks for reading!

Sydney Osmar

26 Aug

Virtual and Counterpart Execution of Wills and POAs: Order Extended

Sydney Osmar In the News, Wills Tags: , 0 Comments

The Ontario government has recently announced which orders currently in force under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 (ROA) have been extended, and which will end. Under ROA, orders can be extended for up to 30 days at a time.

The Limitation Periods order will end and suspended time periods will resume running on September 14, 2020.

O. Reg. 129/20, which allows for the temporary virtual and counterpart execution of Wills and Powers of Attorney, has been extended until September 22, 2020. For a full list of orders under the ROA which have been extended, please see here.

For more information and resources on witnessing and executing Wills and Powers of Attorney virtually and in counterpart, please see our COVID-19 Wills & Estate Planning resource page, here, or the eState Planner blog, here.

Thanks for reading!

Sydney Osmar

09 Jun

Ontario government extends the suspension of limitation periods

Sydney Osmar Uncategorized Tags: , , 0 Comments

After consulting with the Chief Medical Officer of Health, the Ontario government has extended all emergency orders that are currently in effect until June 19, 2020.

For a list of the emergency orders under s. 7.0.2(4) of the Emergency Management and Civil Protection Act (“EMCPA”) that have been extended, see here.

Ontario has also announced that it is extending the suspension of limitation periods and time periods in proceedings pursuant to O. Reg 73/20 until September 11, 2020, which is the maximum renewal period allowable under the EMCPA. O. Reg. 259/20 implements the extension and can be found here.

Furthermore, to address concerns raised by the bar, the Lieutenant Governor in Council has amended O. Reg. 73/20 to provide for further clarity. O. Reg. 258/20 amends the language of O. Reg. 73/20 such that the suspension of limitation periods is no longer tied to the “duration of the state of emergency,” allowing the duration of the order to be based on all relevant factors, and not just the state of emergency. As reported by the Ontario Bar Association, “decoupling” the duration of the suspension from the state of emergency was implemented to address the bar’s request for reasonable predictability and notice.

With regard to the suspension of deadlines and procedural steps set out in any statute, regulation, rule, by-law, or order of the Ontario government, O. Reg. 73/20 provides that the suspension is subject to the discretion of “the court, tribunal or other decision-maker responsible for the proceeding…” O. Reg. 258/20 has clarified that this discretion may be exercised by:

  • the person or persons who have jurisdiction to make orders in the proceeding;
  • the Chief Justice of Ontario, in respect of proceedings before the Ontario Court of Appeal;
  • the Chief Justice of the Superior Court of Justice, in respect of matters before the Superior Court of Justice;
  • the Chief Justice of the Ontario Court of Justice, in respect of matters before the Ontario Court of Justice; and
  • the chair of a tribunal, in respect of proceedings before the tribunal.

Finally, O. Reg 258/20 provides for the resumption of enforcement under Part V of the Family Responsibility and Support Arrears Enforcement Act.

With court closures, limited filings, suspensions of limitation periods, and a likely period of “post-pandemic austerity” on the horizon, Ontario’s justice system is changing, and will need to continue to change to effectively meet the needs of the public. Limitation periods may be on pause, but peoples’ lives continue. For many, this means having some form of interaction with the justice system. Ontario’s Chief Justice, the Honourable Justice George Strathy, has provided his thoughts on what changes may be needed, and questions whether oral advocacy is necessary in every case. For more on Justice Strathy’s comments, see here.

Thanks for reading!

Sydney Osmar

04 Jun

Social distancing in long-term care: did it cause more harm than good?

Sydney Osmar Uncategorized Tags: , , 0 Comments

There is no denying that long-term care homes have been significantly impacted by the COVID-19 pandemic. Yesterday, the Globe and Mail released a sobering article on the impact social isolation has had on Canada’s long-term care and nursing homes, citing that approximately 82% of the country’s COVID-19 deaths have been linked to long-term care facilities.

Now, family members and advocates for Elders are learning that banning visitors from nursing homes could have inadvertently created negative consequences for residents. Prior to social distancing restrictions having been put into place, relatives and private caregivers were often-times relied upon at mealtimes. Through banning visitors, already short-staffed facilities lost the extra assistance provided by family members and private caregivers.

CanAge, a national seniors’ advocacy organization, is receiving concerning reports that some residents are not being fed, with mealtimes forgotten.

This is especially concerning given the risks that extreme temperatures bring as the summer months approach. Jane Meadus of the Advocacy Centre for the Elderly (“ACE”) explains that Ontario’s most recent design standards for new long-term care homes (last updated in 2015), still do not require rooms to be air conditioned, only common areas. For more on the difficulties extreme temperatures pose for residents and front-line workers alike, see here.

Heather Keller, who researches nutrition and aging at the University of Waterloo explained further difficulties social isolation poses to residents’ nutrition, especially those with cognitive impairments. When eating alone, residents tend to consume less, as they are not exposed to important social cues they would otherwise get if eating in a dining room setting.

Families and seniors’ organizations are calling on Ontario (and other provinces) to relax restrictions on visits, citing the risks to residents’ physical and mental health.

For more on our coverage of COVID-19’s impacts on long-term care, please see links to the below blogs:

A Call for Change in Toronto’s Long-Term Care Facilities

Are Ontario’s Long-Term Care Facilities Ready for COVID-19?

More needs to be Done to Protect Those in Long-Term Care

TALK 2 NICE: Support for the Elderly During COVID-19

Finally, for information on the Residents’ Bill of Rights within Ontario’s Long-Term Care Homes Act, 2007 see Stuart Clark and Doreen So’s podcast here.

Thanks for reading!

Sydney Osmar

01 Jun

The Hull & Hull weekly webinar: a summary

Sydney Osmar Estate & Trust, Estate Planning Tags: 0 Comments

As many of our blog readers will know, Ian Hull, Jordan Atin and Suzana Popovic-Montag have been working hard during the pandemic to host weekly webinars in efforts to increase resource sharing and practice management tips.

I have had the opportunity to help out with this endeavour, and have attended each webinar to date. Many helpful practice tips and resources have been shared, so I thought it may be useful to provide an overview summarizing some of the main takeaways that have been touched upon to date:

Virtual and Counterpart Execution of  Wills/POAs

  • After swift responses from the Attorney General of Ontario, Wills and POAs can now be witnessed virtually, and, executed in counterpart for the duration of the pandemic. Of course, the Emergency Order does not set out explicitly how to do so. Therefore, Ian and Jordan have attempted to outline best practices on how to accomplish the virtual and counterpart execution of Wills and POAs. Jordan has prepared a detailed blog setting out the process he uses, providing links to helpful checklists which can be found here.
  • Some further tips discussed include circulating locked versions of the documents to be executed with a unique identifier so that the solicitor can ensure everyone is working off the same document.
  • While the Emergency Order has opened up the possibility for counterpart and remote execution of Wills and POAs, clients should be encouraged to re-sign their Wills and POAs when in-person meetings can resume.

Holograph Wills and the use of an Amanuensis

  • Some early discussions in the webinar series, before counterpart and remote execution was a possibility, focused on the possible use of holograph wills, or the use of an amanuensis (signing a testator’s Will, on their behalf, at their direction).
  • Jordan has summarized these discussions in two blogs. To learn more about the use of holograph wills, see here. To learn more about the use of an amanuensis, see here.

Avoiding Claims

  • An important topic that has been touched on throughout the webinar series is avoiding LawPRO claims in a COVID-19 world. While much thought has been given to the actual execution and witnessing of Wills and POAs during the pandemic, practitioners should not let their regular practice management fall to the back burner. Regardless of COVID-19, LawPRO claims continue to result from errors such as: inadequate investigation, miscommunication, errors of law and poor time management.
  • Now with the increasing necessity to take Will planning instructions by phone or video conference, heightened steps need to be taken to ensure that both client and solicitor understand the client’s instructions and intent, as well as testing for things like capacity and undue influence. WEL Partners have prepared a checklist for indicators of undue influence during virtual meetings which can be found here.

Tools and Technology for Practice Management

  • LawPRO has prepared a resource page which includes links to various tools, articles, checklists and other resources which can be accessed by practitioners.
  • E-State Planner – one of the many ways in which E-State Planner can be used to avoid claims, regardless of COVID-19, is by providing the client with visuals. Using visual aids while taking instructions ensures that there is an understanding between client and solicitor, right from the spelling of names to the actual impact their instructions have on the distribution of the estate.
  • Virtual Web Conferencing Systems – while there are many options to choose from, it is clear that the web conferencing has become a significant part of the daily practice of law, one which is likely to stay. Whether using Zoom, Webex, Microsoft Teams, Google Hangouts or any of the many other systems available, lawyers should take the opportunity now, to familiarize themselves with web conferencing. In particular, screen sharing, which has become integral to virtual meetings, mediations, hearings, examinations and so forth, is a particular skill that should be honed.
  • Protecting privacy – as we have learned, it is extremely important to take all necessary precautions to protect privacy when utilizing web conferencing systems. Examples of such steps are: using passwords, using the “waiting room” or “lobby” feature so that the host can limit access to the meeting to authorized individuals, or, requiring registration.
  • Recordings – another unique feature of web conferencing systems is that the recording of meetings is becoming increasingly more common. While this can be helpful for ensuring that there is a complete record of instructions and advice given, it also means that lawyers will likely be held to a higher standard (as the recording will allow for greater scrutiny).
  • Inter-office communication resources – with lawyers and staff working from home, there is greater need for fostering instant communication and resource sharing inter-office. Services such as Slack can be used for both inter-office communication and file management. Slack also allows for you to add in tools and apps to assist in practice management, such as Notability, the use of check lists, work flows, and even web conferencing platforms.
  • File management in a “remote world” – with the office working from home, there is a greater need for remote office software. Programs such as Clio and Monday.com are examples of such software.

Moving Matters Forward

  • With courts limited to hearing only urgent matters, lawyers have had to get creative in how we can continue to move matters forward and continue to meet and exceed client expectations. As discussed in the webinar series, this has included (for cases that are appropriate) conducting examinations and mediations virtually. To learn more about the Estate Arbitration Litigation Management initiative spearheaded by Suzana, see here.

CPD Credits

Finally, as we have had a regular and significant turn out to the weekly webinar series, I would like to remind all participants that they qualify for CPD credits for having attended the webinars. In case you missed which credits you are eligible for, please see below:

  • Webinar 1 – March 27, 2020: 15 mins substantive, 15 mins professionalism
  • Webinar 2- April 3, 2020: 45 mins substantive, 15 mins professionalism
  • Webinar 3 – April 11, 2020: 30 mins substantive, 30 mins professionalism
  • Webinar 4 – April 17, 2020: 45 mins substantive, 15 mins professionalism
  • Webinar 5 – April 23, 2020: 45 mins substantive, 15 mins professionalism
  • Webinar 6 – April 24, 2020: 15 mins substantive, 15 mins professionalism
  • Webinar 7 – May 1, 2020: 45 mins substantive, 15 mins professionalism
  • Webinar 8 – May 8, 2020: 45 mins substantive, 15 mins professionalism
  • Webinar 9 – May 15, 2020: 45 mins substantive, 15 mins professionalism
  • Webinar 10 – May 22, 2020: 45 mins substantive, 15 mins professionalism
  • Webinar 11 – May 29, 2020: 45 mins substantive, 15 mins professionalism

Thanks for reading!

Sydney Osmar

05 Mar

Revocation of a Power of Attorney for Personal Care and its impact on substitute decision making under the Health Care Consent Act

Sydney Osmar Capacity, Elder Law, Health / Medical Tags: 0 Comments

Section 20 of the Health Care Consent Act (“HCCA”) provides for a legislative hierarchy of substitute decision makers for persons who have been found incapable with respect to treatment. The hierarchy is as follows:

  1. The incapable person’s guardian of the person;
  2. The incapable person’s attorney for personal care;
  3. The incapable person’s representative appointed by the Consent and Capacity Board;
  4. The incapable person’s spouse or partner;
  5. A child or parent of the incapable person, or an agency that replaces the parent’s authority;
  6. A parent of the person who only has a right of access;
  7. A brother or sister of the incapable person; and
  8. Any other relative of the incapable person.

Those in the above list may only give or refuse consent on behalf of the incapable person if they are: at least 16 years of age, are not prohibited by court order, are available, and are willing to assume this responsibility. A person from the above hierarchy may only act as the substitute decision maker with regard to treatment, if there is not a person who also meets these requirements who ranks higher within the hierarchy.

Sections 20(5) and 20(6) of the HCCA sets out that if no one in the above list meets the requirements to make treatment decisions, or, if there are two equally ranking parties who both meet requirements but disagree on the treatment decision, the decision will devolve to the Public Guardian and Trustee (“PGT”).

As is clear by the placement within the above hierarchy, the act of granting a power of attorney for personal care (“POAPC”) holds great weight when it comes to determining substitute decision makers with regard to treatment decisions. However, the significance of the act of revoking a POAPC in relation to the legislative hierarchy is less clear.

For example, it is quite common for a person to grant a POAPC to their spouse or child, however, in revoking the POAPC, the spouse or child could still remain the legal substitute decision maker under the section 20 hierarchy, should there be no other higher ranking individual willing and able to make treatment decisions, and if the grantor fails to execute a new POAPC.

I have located two decisions of the Consent and Capacity Board (the “Board”), which suggests that in such circumstances, the Board will pull language from other sections of the HCCA to circumvent the hierarchy provided under section 20, where it is clear to do so would be in the incapable person’s best interests.

In A(I) Re, Mrs. I.A. had previously appointed her two children as her attorneys for care. However, this POAPC was later revoked, with Mrs. I.A. informing her lawyer she feared her two children would be unable to reach agreements on important health care decisions. Two distant relatives were instead appointed pursuant to a new POAPC. However, when Mrs. I.A. lost capacity, and a treatment decision needed to be made, the distant relatives felt they were not best suited to make such a decision.

Both children applied to act as Mrs. I.A.’s representative under s. 33 of the HCCA. In coming to its decision the Board accepted that Mrs. I.A.’s overt act of revoking the POAPC that appointed her children was a prior expressed relevant value and belief, however, this did not impact the fact that both children still qualified as decision makers under the section 20 hierarchy. The Board ultimately determined that it was not in Mrs. I.A.’s best interests to have her children act as decision makers, and concluded they could not agree, such that the decision devolved to the PGT.

In D(D) Re, this issue again arose, where the incapable person, D.D. (prior to becoming incapable) granted a POAPC to her husband, later revoking the POAPC when she believed that her husband would not act in her best interests. Because a new POAPC was never executed, the husband remained the legal decision maker under section 20. D.D.’s daughter, J.R., brought an application to the Board to act as her representative. In coming to its conclusion, the Board noted that it was clear that D.D. had not understood that by revoking the POAPC, her husband would remain the decision maker under the HCCA hierarchy, and that it was equally clear her intention had been to remove her husband as the legal decision maker. Therefore, to circumvent the hierarchy, the Board turned to a best interests analysis and ultimately appointed D.D.’s daughter as her decision maker.

Thanks for reading!

Sydney Osmar

For a related discussion on consent to treatment and the HCCA, click here.

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