New fears and anxieties brought on by the health crisis may play a part in the uptick we are seeing in the making of wills and powers of attorney documents. Ontarians, particularly vulnerable older Ontarians, may take comfort at this time in having their estate plans laid out, as well as having individuals in place to manage their finances and personal care in the event of illness, incapacity or physical inability to manage these tasks themselves.
Once these powers are granted, disputes can arise over when an attorney can start acting in the appointed role, particularly when incapacity is required prior to the attorney commencing to act. In the management of one’s property, donors often sign power of attorney documents where the ability to commence acting takes effect from the date of the document. However, donors sometimes opt to have the authority deferred to the time of incapacity. Similarly, when it comes to the management of one’s personal care, the attorney cannot act until the grantor lacks the capacity to do so.
How incapacity is determined is often impacted by the power of attorney document itself and the varying level of protections that a donor may wish to have in place. For instance, the grantor may choose to have the power of attorney document stipulate that (i) one physician’s letter opining that the donor is incapable will suffice, or (ii) two physician’s letters are required, or (iii) incapacity be determined by a formal capacity assessment conducted by an accredited capacity assessor.
Should a capacity dispute arise, it is noteworthy that the Substitute Decisions Act protects the privacy, dignity, and legal rights of the individual through the following provisions:
- there is a presumption of capacity (s. 2);
- a person whose capacity is in issue is entitled to legal representation (s. 3);
- a person alleged to be incapable is entitled to notice of court proceedings (ss. 27(4) and ss. 62(4));
- the court must not appoint a guardian if it is satisfied that the need for decisions to be made can be met by an alternative course of action that is less restrictive of the person’s decision making rights (ss. 22(3) and ss. 55(2));
- in considering the choice of guardian for property or personal care, the court is to consider the wishes of the incapable person (ss. 24(5)(b) and ss. 57(3)(b)); and
- subject to exceptions, a person has a right to refuse an assessment, other than an assessment ordered by the court (s. 78).
Giving someone the power to control our finances and personal care are some of the most important decisions we make that can impact the quality of life in our elder years. Sober and thoughtful consideration of the best person(s) for the role is essential, and may minimize discord, disputes and abuse in this area.
Thanks for reading and have a great day,
The looming threat of COVID-19 has caused some people to see their own mortality in a new and clearer light. In addition to the existential and/or religious contemplation that may arise from this reality, individuals are also turning their minds to more practical end of life planning.
An end of life plan, also referred to as an advance care plan (“ACP”), sets out how an individual would like to be cared for in the final months of their life. In Ontario, an ACP will usually include a Power of Attorney for Personal Care designating a trusted person(s) to make healthcare decisions on behalf of an individual in the event of their incapacity.
An ACP may also include an advance directive, or “living will”, which is a written statement of wishes about future care. Unlike a Power of Attorney, advance directives are not referenced in Ontario’s health care legislation and are not a legal document. However, Ontario law does recognize that wishes and preferences regarding future care choices that are expressed when mentally capable ought to be respected and followed, if possible. Thus, a Power of Attorney or other substitute decision maker is expected to abide by an advance directive to the extent possible. This makes advance directives a useful tool for anyone seeking greater control over the medical treatment they receive while incapable.
Interestingly, a COVID-19-specific advance directive has emerged in the United States. Dr. Andrea Kittrell, a head and neck surgeon practicing in Virginia, established an organization called Save Other Souls (“SOS”) whose objective is to assist individuals with their advance care planning as it pertains to COVID-19-related medical treatment. Specifically, SOS provides guidance on preparing a document that has been coined the “COVID-19 SOS Directive”. This document is a type of altruistic advance directive wherein a person expresses their wish to defer lifesaving critical care hospital placement, medication, and/or equipment to another patient in need during a declared emergency and where there are insufficient health care resources to go around.
Since the COVID-19 SOS Directive was developed for use in jurisdictions outside of Ontario, I will not opine on the effectiveness of this particular document. However, the document is a reminder of the importance of considering one’s own ACP in light of the global pandemic. For information on COVID-19-related advance care planning for Canadians, you can check out Dying With Dignity Canada’s COVID-19 ACP Toolkit. Another helpful resource is the Plan Well Guide which is discussed in Nick Esterbauer’s blog here.
Thanks for reading!
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!
The #FreeBritney movement is a social media movement driven by the fans of Britney Spears, and it has been trending recently this month according to Global News. Britney’s fans are concerned that Britney is being mistreated by her legal conservators. Britney Spears has been under a court-ordered conservatorship since 2008.
In the years leading up to Britney’s conservatorship, there were a multitude of public incidents that called Britney’s wellbeing into question, the most iconic of which was perhaps the viral, tabloid photograph of Britney shaving her head in 2007. In 2008, Britney was involuntarily hospitalized after police were called to her home. Thereafter, Britney was placed under an interim conservatory order, which was ultimately made permanent. Britney’s conservatorship meant that her father, James Spears, and lawyer, Andrew Wallet, had complete control of Britney’s assets, which is similar to a guardianship of property under the Ontario Substitute Decisions Act, 1992. James Spears was given control of Britney’s health like a guardianship of person.
Despite being stripped of the right to control her own property and personal care, Britney’s career has flourished in the twelve years after 2008. During the first year of her conservatorship alone, Britney appeared on television shows and even released a new album (Circus). Britney went on to release 3 more albums after that, and she was the star of a four-year concert residency in Las Vegas (which was excellent in my humble opinion). Britney was also a judge on the television competition show, X Factor, where the judges of the show mentor and critique contestants on their performances. For a list of her accomplishments, check out Britney’s extensive Wikipedia page.
In Ontario, a person is incapable of managing property if “the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision” (section 6 of the SDA).
With that in mind, Britney’s role as a judge on X Factor and her reactions on the show seem to show that she was appropriately reacting to the performances of the contestants and that she understood what was at stake in the competition. However, the lay opinion of her fans (myself included) alone would be insufficient to satisfy the statutory requirements of a motion to terminate guardianship of property and person under Part III of the SDA. If the motion is brought on a summary basis under section 73 of the Act, the moving party must include one statement from a capacity assessor and one statement by a second assessor or someone who knows the person, which indicate the following:
(a) that the maker of the statement is of the opinion that the person is capable of managing property, and set out the facts on which the opinion is based; and
(b) that the maker of the statement expects no direct or indirect pecuniary benefit as the result of the termination of the guardianship.
Similar statements are required to terminate a guardianship of person.
Earlier this year, Britney’s conservatorship was extended until at least August 22, 2020.
#FreeBritney and thanks for reading,
Legal Aid Ontario has published a notice setting out changes to coverage for Consent and Capacity Board appeals.
Effective June 23, 2020, Legal Aid Ontario is making the following changes to its certificate coverage:
- an additional 10 hours will be offered to the current 25 hours allocated on the CCB appeal tariff. This increases total coverage to 35 hours
- a new 10-hour certificate for motions for emergency/urgent CCB treatment orders held in the Superior Court is being introduced
The full notice can be found here.
If you have applied for CCB appeal coverage from March 13 onward, Legal Aid Ontario will be contacting you regarding the notice. If you have not heard from Legal Aid Ontario, you should contact them directly.
Any attempt to increase access to justice, is always welcome.
If you find this blog interesting, please consider these other related blogs:
Yes, you’re reading this blog on a Monday. As week days go, Monday isn’t nearly as fun as a Thursday, or Friday. But that doesn’t mean you should be unhappy. A recent study purports that repetitive negative thinking is linked to cognitive decline.
The authors of the study propose that repetitive negative thinking may be a new risk factor for dementia. Based on various tests, the study found that when compared to non-pessimists, people who think negatively have a greater buildup of certain proteins in the brain that cause Alzheimer’s disease (the most common type of dementia), a worse memory, and greater cognitive decline.
Based on this correlation, it is believed important to think happy thoughts. Whether you are a glass half empty or half full kind of person, the brain can be trained to be more optimistic. This can be done in a number of ways, including:
- meditating – one study found that only 30 minutes a day over a two week period produced a measurable change in the brain
- practicing gratefulness – taking a few minutes each day to write down what you are thankful for
- reframing negative thoughts –changing your perspective on a situation to give more of a positive or beneficial meaning to you
As Bobby McFerrin sings, ‘In every life we have some trouble / But when you worry you make it double / Don’t worry, be happy / Don’t worry, be happy now’.
If you find this blog interesting, please consider these other related blogs:
Earlier this week, Ian Hull and I spoke at Osgoode Professional Development’s program on Powers of Attorney and Guardianship: Non-Contentious and Contentious Matters.
During the program, in addition to discussing new execution options for wills and powers of attorney, the panel shared its thoughts on a number of considerations relevant to the preparation of powers of attorney during the pandemic, including some of the following:
- It may now be impractical to permit for decisions regarding personal care or property to be made only jointly by two or more attorneys acting together where the attorneys selected are not members of the same household.
- In light of ongoing travel restrictions, it may be increasingly important that the selected attorney(s) for property and/or personal care are local.
- It may be more difficult to access multiple medical professionals (or a specified medical professional) to confirm incapacity during a healthcare crisis. The provision regarding the circumstances in which a power of attorney is to become effective should accommodate potentially limited access to a specified physician or more medical professionals than necessary.
- It may be more important than ever to ensure that the original power of attorney documents (and/or copies) are physically accessible to the named attorney(s).
- The current circumstances present a unique opportunity to assist clients in updating outdated plans and ensuring that powers of attorney are put into place for those who do not have them already.
Even outside of the context of a pandemic, considering practical issues like those set out above when creating or updating an incapacity plan is a worthwhile exercise and may expose potential problems with the plan before it is finalized.
Thank you for reading.
Other blog entries that may be of interest:
The motions in Volk v. Volk, 2020 ONCA 256, arose from an appeal of an order to, inter alia, sell a property owned, in part, by Doris Volk, who is incapable of managing her own property, and to pay the net proceeds of sale to Doris’ husband, George. This case is instructive for how matters are currently proceeding before the Court of Appeal and in general for the scope of examinations under SDA matters.
George is not Doris’ attorney for property. The attorneys for property are Doris’ daughter, Darlene, and Doris’ sister, Lisa. George brought an application under the Substitute Decisions Act, 1992 because he claimed that the property was improperly transferred by the attorneys from Doris, as the sole owner, to Doris and Darlene’s daughter, Felicia, as tenants in common. At the time of the application, the property was registered with a 1% interest in Doris’ name and the rest was registered in Felicia’s name. Furthermore, the property was occupied by Darlene but George claimed that the carrying costs of the property were paid from Doris’ money in further breach of trust.
George’s application was granted on January 7, 2020 on the consent of Lisa. Darlene, Felicia, and the Public Guardian and Trustee did not appear or file opposing materials. The house was sold with a closing date of May 16, 2020.
Darlene and Felicia appeals the order of January 7th on ground that they were not properly served or provided with adequate notice of the application. They also brought a stay motion with a supporting affidavit from Felicia. Felicia was cross-examined on her affidavit and she refused a number of questions on the advice of her counsel. This led George to bring a refusals motion and an request for an adjournment of the motion for a stay pending appeal.
Both the refusals motion and the stay motion were scheduled to be heard before Justice Paciocco on April 14, 2020. Justice Paciocco noted that the agreement for purchase and sale gave the stay motion added urgency. The matter proceed on April 14th with counsel for Darlene and Felicia appearing by phone and counsel for George appearing by videoconference. George’s refusals motion was allowed in part. Justice Paciocco clarified that the proper scope of a cross-examination on an affidavit is governed by the issues that are relevant to motion. It includes questions that are relevant to credibility so long as it within the competence of the motions judge to determine (para. 10). He then goes on to give reasons for why certain categories of questions ought to be answered and why other categories were found to be irrelevant or unfair. Of note, questions about Doris’ state of mind were properly refused because it was unfair for Felicia to speak for Doris (para. 19).
Since counsel for George acknowledged that further examinations were not feasible as a result of COVID-19, Justice Paciocco ordered a timetable for answers and follow up questions in writing. The stay motion was adjourned to May 1st.
Thanks for reading and keep well.
Revocation of a Power of Attorney for Personal Care and its impact on substitute decision making under the Health Care Consent Act
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:
- The incapable person’s guardian of the person;
- The incapable person’s attorney for personal care;
- The incapable person’s representative appointed by the Consent and Capacity Board;
- The incapable person’s spouse or partner;
- A child or parent of the incapable person, or an agency that replaces the parent’s authority;
- A parent of the person who only has a right of access;
- A brother or sister of the incapable person; and
- 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!
For a related discussion on consent to treatment and the HCCA, click here.
In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area. As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?
Our regular readers will already be well aware that capacity is task, time, and situation specific.
Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment. Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:
A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.
The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow. While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different. Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.
Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy. While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.
Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.
Thank you for reading,