Category: Elder Law
In Ontario, a Continuing Power of Attorney for Property or a Power of Attorney for Personal Care must be signed by two witnesses. As our readers also know, as a result of COVID-19, witnessing and execution requirements for Powers of Attorney in Ontario have been relaxed to facilitate access to incapacity planning during the pandemic. These provisions have recently been extended to November 21, 2020. Provided that one witness to a Continuing Power of Attorney for Property or Power of Attorney for Personal Care is a licensee under Ontario’s Law Society Act, the document may be witnessed using audiovisual communication technology and signed in counterpart. The document does not otherwise need to be witnessed by a lawyer (although, where a lawyer has assisted in the preparation of Powers of Attorney, it will often be most practical for the lawyer and one of his or her staff to witness the client’s execution of the document).
Especially in light of social distancing measures, it is important to keep in mind the restrictions on who can witness incapacity planning documents. In Ontario, neither a Continuing Power of Attorney for Property nor a Power of Attorney for Personal Care can be witnessed by:
- the attorney or the attorney’s spouse;
- the grantor’s spouse;
- a child of the grantor;
- a person whose property/personal care is under guardianship; or
- an individual of less than eighteen years old.
If the lawyer him or herself is being appointed under the document, which is not an uncommon practice, the involvement of a second lawyer or a paralegal in the virtual execution and witnessing of the document(s) may be necessary.
In the Yukon, the witnessing requirements for Powers of Attorney are somewhat different. As it currently stands, in order for a Continuing Power of Attorney for Property (there referred to as an Enduring Power of Attorney) to be effective, a Certificate of Legal Advice must be provided by a lawyer. As a result, the lawyer typically witnesses the Power of Attorney, which is not otherwise valid. While only one witness is required, the lawyer providing the Certificate cannot be the attorney or the attorney’s spouse.
A recent article from Canadian Lawyer reviews proposed changes to Yukon’s Enduring Power of Attorney Act. One of the key amendments is the replacement of the requirement that a lawyer be involved in witnessing the execution of Continuing Powers of Attorney for Property with the option of the witnessing of such documents by two other individuals. Similar to the requirements in Ontario, a witness must be an adult and cannot be the spouse of the donor, the attorney, or the spouse of the attorney.
If approved, the recent Yukon Bill will eliminate the necessity that a lawyer be involved in the witnessing of Powers of Attorney to increase access to incapacity planning throughout the territory.
Thank you for reading.
As we age, many of us begin to experience the normal consequences of aging, including some memory loss. Unfortunately, many of us may end up suffering from Alzheimer’s and related dementias. As a result, capacity has become a bigger problem among seniors.
There are ways to manage decision-making for a senior who has lost capacity to make his or her own decisions about care or property. If the person executed a power of attorney, their attorney can step in. If there is no power of attorney, a guardian can be appointed by the court. However, the imposition of a substitute decision maker can be a significant restriction on an older adult’s liberty, and some seniors may resist that imposition.
An article in The Walrus earlier this year considered this issue, and the impact a finding of incapacity can have on a senior’s autonomy in Canada.
One of the concerns discussed in the article is that “some seniors find that, once declared incapable, they are unable to challenge the decision.” In Ontario, we have the Consent and Capacity Board, which is an independent tribunal that, among other things, reviews various determinations regarding an individual’s capacity. However, this is apparently a rarity in Canada. The only other similar body is located in the Yukon.
Another issue raised by the Walrus article is with the lack of a standardized system for assessing capacity. The person doing the assessment can vary (doctor, nurse, social worker, etc.), as well as the tests conducted. This is made even more complicated by the fact that there are differing levels of capacity for different tasks (e.g. making a Will, managing property, getting married, granting a power of attorney for personal care).
Unfortunately, the lack of attention paid to the issue of aging and capacity appears to be systemic. As cynically, but perhaps also realistically stated in the Walrus article: “It can seem like a great deal of attention is paid to other institutions that house vulnerable segments of the population, such as children in daycares. But there’s no future in aging; there is next to no potential that a senior might one day cure cancer or be the next prime minister. Reform in elder care may be desperately needed, but it hasn’t been forthcoming.”
There is a fine balance to be struck between restricting seniors’ autonomy, and protecting vulnerable people. A collaborative “supported decision-making model”, as discussed in the article may be one way of doing this. I hope that as more attention is drawn to these issues, there will be greater awareness, and increased progress and reform for our seniors.
Thanks for reading,
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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.
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Many parts of the world remain under some degree of lockdown due to the COVID-19 pandemic. For older adults who may have limited access to assistance or company outside of immediate family during the pandemic, and/or whose transition to long-term care may have been delayed as a result, temporary relocation to live with supportive family members may be a suitable option.
As our readers know, inheritance tax is payable in respect of the assets of estates located in a number of jurisdictions, which do not include Canada. In the United Kingdom, for example, an inheritance tax of 40% is charged on the portion of an estate exceeding a tax-free threshold of 325 thousand pounds (subject to certain exceptions).
One way that some families choose to limit inheritance tax is to gift certain assets, in some cases a family house, prior to death, such that its value will not trigger the payment of inheritance tax. In the UK, if an asset is validly gifted at least seven years before death, inheritance tax will not be payable on the asset. However, where the donor of the gift reserves the benefit of the property – for example, if he or she continues to live at real property gifted to another family member – the gift will not be valid for the purposes of inheritance tax calculations.
A recent news article highlights the risk that older individuals in the UK who move back into previously gifted property during the pandemic may lose the benefit of potential inheritance tax exclusions by falling under the “gift with reservation of benefit” exception as a result of benefitting from continued occupation of the gifted property. While this risk may not outweigh the benefits of obtaining family support, it is a factor that a family may wish to consider as part of a decision to alter living arrangements.
Approximately 600 gifts have failed in the past several years, triggering up to 300 million pounds in inheritance tax in the UK. It is certainly possible that these figures will continue to increase as a result of shared family accommodations during the pandemic.
Thank you for reading and stay safe,
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A recent report of the Canadian Armed Forces into the state of five Ontario nursing homes has shed light on disturbing issues inside of the homes.
Early into the COVID state of emergency, the Canadian Armed Forces was asked to assist at 5 Ontario nursing homes, and 25 Quebec nursing homes. In the course of their duties, the Armed Forces noted serious shortcomings at the nursing homes. The report has led to calls for various action, including a coroner’s investigation, and possible police investigations.
It should be noted that there is a statutory duty on everyone to report any suspected impropriety occurring at a long-term care facility. Specifically, s. 24 of the Long Term Care Homes Act, 2007 requires that a person who has reasonable grounds to suspect any of the following has occurred or may occur to immediately report the suspicion and the reasons upon which it is based to the Director of Long Term Care:
- improper or incompetent treatment or care of a resident that resulted in harm or a risk of harm to the resident;
- abuse of a resident by anyone or neglect of a resident by the licensee or staff that resulted in harm or a risk of harm to the resident;
- unlawful conduct that resulted in harm or a risk of harm to a resident;
- misuse or misappropriation of a resident’s money; or
- misuse or misappropriation of funding provided to a licensee.
While there is an obligation on everyone to report the suspicion of such conduct, it is only an offence if certain described individuals fail to report. These individuals include the licensee, an officer or director of any corporate licensee, a staff member, or any person who provides professional health, social work or social services to a resident or licensee.
Long term care licensees also have a statutory obligation to ensure that any alleged, suspected or witnessed incident of abuse of a resident by anyone, neglect of a resident by the licensee or staff is investigated, and that “appropriate action” is taken in response to any incident. The results of the licensee’s investigation and the action taken in response are to be reported to the Director. Further, the Act requires that the licensee must establish a procedure for initiating complaints to the licensee and for how the licensee deals with the complaints.
The report of the Canadian Armed Forces will, hopefully, bring about positive change for a vulnerable, often voiceless segment of society. Others should (or in some cases, must) also come forward to report harmful conditions or conduct. If you see something, say something.
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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:
COVID-19 has prompted innovation and legislative updates in terms of the way that lawyers can assist our clients with estate and incapacity planning. A new tool created by a professor at my alma matter, Queen’s University, has recently emerged to supplement formal planning by making it easier for clients to create end-of-life treatment plans and to discuss their end-of-life wishes with their families and health care teams.
The Plan Well Guide is a free online tool that allows users to formulate a “Dear Doctor letter”, which can be provided to a physician for discussion and can be reviewed with family members (or otherwise an attorney or guardian of personal care) to ensure an understanding of the person’s wishes during a health crisis. The website also includes other information and resources relevant to end-of-life decision making.
I went through the process of creating an end-of-life plan using this resource and found it to be user-friendly and straightforward. Some highlights of the Plan Well Guide include the following:
- There are prompts that ask whether a user has a Power of Attorney for Personal Care and Will in place, which may act as a prompt to obtain a lawyer’s assistance if necessary.
- The website illustrates the user’s wishes, with examples to confirm the accuracy of the information that the user inputs. Where the illustration is not consistent with the user’s actual wishes, the user can go back to modify priorities to better reflect their wishes.
- Quizzes to ensure proper understanding of terms such as ICU treatment, comfort care, and the nature of resuscitation.
- There are prompts for both outstanding questions or issues for discussion with a healthcare provider and explanations of wishes to provide those reading the document with a better understanding of the user’s rationale behind their wishes.
Especially in the midst of the current pandemic, tools like this that make end-of-life planning more accessible, while having the potential to expose deficiencies in incapacity or estate planning and encouraging an open discussion of wishes in terms of medical treatment, can be helpful resources.
Thank you for reading.
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I recently read an interesting article by Helene Love titled “Seniors on the Stand: Accommodating Older Witnesses in Adversarial Trials”, that explored the intersection of age and its effects on witness testimony in trials. Helene’s article considers whether the legal and procedural rules that have been developed to ensure that only the most reliable evidence is used in a trial may disproportionately be excluding evidence from seniors. The paper assessed the risks associated with aging, as well as the practical and legal issues related to aging witnesses, and offered suggestions to accommodate senior witnesses within our current legal framework. I will summarize some of the key considerations below.
The objective of a trial is to discover the truth. Examinations of witnesses under oath allow the trier of fact to test the reliability of witnesses, making examinations during trial a fundamental aspect of the modern day trial. Interestingly, the basis for requiring live testimony of witnesses dates back to the 16th and 17th century trials by jury, whereby jurors were not prevented from relying on untrustworthy sources of information, and abuses of power were common. In order to enhance the reliability of trials and control the quality of evidence, judges created the requirement for witnesses to provide evidence in person. The reliability of a witness is typically assessed by a judge based on a witness’s ability to observe, recall, and then recount and event in the courtroom.
Reports indicate that within the next 20 years, the number of Canadians aged 65 years or older will double, meaning that there will be more senior citizens involved in the justice system. Given the significant increase in older persons acting as witnesses, there are a number of ways that aging can impact a witness’s ability to provide evidence during a trial.
Some of the risks associated with aging include:
- Attrition – depending on the complexity of a case, it can take months or even years to finally reach a trial date, meaning that there are increased chances that an older witness, particularly those over 80 years old, have an increased chance of dying before having a chance to take the witness stand.
- Changes to the Sensory Organs and the Brain with Age – biological changes to sensory organs and the brain can result in a decrease in perceptual acuity and gaps in memory.
- Mobility Issues – Health Canada reports that by age 75, 29% of men and 38% of women report at least one physical limitation, making it more difficult to attend court in person, particularly if that appearance is extended over a period of time.
- Strokes and Dementia – Individuals aged over 65 are ten times more likely to have a stroke, and individuals who have had a stroke are more than twice as likely to develop dementia. Dementia can involve a range of symptoms, including physical limitations such as limb stiffness to the most commonly known type of dementia, Alzheimer’s Disease. Individuals with cognitive impairments would not be competent to testify in a trial.
This begs the question, how can the legal system accommodate senior witnesses while maintaining accuracy and reliability as top priorities in the pursuit of the truth? I will address some of the main solutions proposed in the civil context (although there were a number of great alternatives proposed in the criminal context that I encourage you to read).
- Expedited trial scheduling or proceeding by way of summary trial. Although not discussed in this article, another possibility in Ontario may be to request a case management judge who can determine whether the case should be heard in an expedited manner.
- Obtain witness evidence at an earlier point in time through discoveries, pre-trial examinations, or affidavit evidence to be relied on at a later date.
- Use the principled approach to hearsay. The rule against hearsay states that earlier statements made by others outside of court are presumptively inadmissible because they were not made under oath, in the presence of the trier of fact and/or tested by cross examination. However, hearsay statements can be admitted for their truth if they are sufficiently necessary and reliable, as outlined in the leading Supreme Court of Canada case of R v Khelawon, 2006 SCC 57
Thanks for reading!
 In the 1692 Salem Witch Trials, 14 women and 6 men were executed on charges of witchcraft based entirely on supernatural visions that indicated the presence of witchcraft, the reliability of which went untested during the trial.
There’s a really good chance that if you live anywhere in the world that is not completely disconnected from the rest of society, you would have heard about COVID-19, and the fact that it has officially reached every single continent (except for Antarctica). The World Health Organization (WHO) has maintained that the containment of COVID-19 must be the top priority for all countries, given the impact it may have on public health, the economy and social and political issues.
Around 1 out of every 6 people who gets COVID-19 becomes seriously ill and develops difficulty breathing. Older people, and those with underlying medical problems like high blood pressure, heart problems or diabetes, are more likely to develop serious illness.
In a statement released on March 4, 2020, the WHO indicated “although COVID-19 presents an acute threat now, it is absolutely essential that countries do not lose this opportunity to strengthen their preparedness systems.”
The value of preparedness is being played out in a Seattle suburb, where COVID-19 has spread to a local nursing home, resulting in a quarantine of residents and staff. In the US, nursing homes are being criticized for being incubators of epidemics, with relaxed infection-control practices and low staffing rates, among other issues. Friends and family of residents in this Seattle facility are in an unenviable position, worrying about the health and safety of their loved ones and considering the gut-wrenching possibility that their loved ones might die alone. To read more about this issue, click here.
With the number of confirmed positive cases of COVID-19 on the rise in Ontario, I wonder how our long-term facilities are preparing to deal with an outbreak should one occur?
In the spirit of prevention, it is important to consider reducing the frequency of visits with our elderly loved ones, and spreading knowledge and information about hand-washing and other preventative measures.
For more information about COVID-19, click the links below:
Government of Ontario: https://www.ontario.ca/page/2019-novel-coronavirus
World Health Organization: https://www.who.int/emergencies/diseases/novel-coronavirus-2019
Thanks for reading!
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.