A recent decision arising from the British Columbia Court of Appeal addresses the ability of an elderly Alzheimer’s patient to provide consent to personal care decisions without speaking.
Bentley v. Maplewood Seniors Care Society involves a petition brought by Margaret Bentley’s daughter and husband to prevent Maplewood, the care facility in which Margaret has been a patient since 2009, to cease providing food and water to Margaret.
At the time of the hearing, Margaret was an 83-year-old woman who had been afflicted with Alzheimer’s Disease since at least 1999. Consequently, Margaret would sit “…slumped over in a chair or in bed most of the time, with eyes closed. She has not spoken since 2010 and does not appear to recognize anyone”.
Margaret’s family relied on evidence from as far back as 1991, including a living will (otherwise referred to as an advance directive), expressing Margaret’s wishes that, amongst other things, if there was no reasonable expectation of recovery from extreme physical or mental disability, she be allowed to die (and not be provided with nourishment or liquids). Interestingly, Margaret was a nurse in earlier years, who had experience with patients in ‘vegetative’ states due to Alzheimer’s Disease. Accordingly, one may think that these decisions were well thought out.
Maplewood argued that Margaret opened her mouth to accept nourishment or liquid. Should Margaret keep her mouth closed, as she did when at the dentist, or keep her teeth clenched, they would respect her decision and not attempt to feed her by means of a feeding tube or any other medical means.
The lower Court Judge considered various evidence from general practitioners, finding it significant that Margaret “…indicates preferences for certain flavours and eats different amounts at different times…”, and that the petitioners (family), had not established that Margaret’s behaviour was a mere reflex.
Importantly, the family did not seek to have Margaret declared incapable. Therefore, the Court found that Margaret consented to being given food and water by holding a spoon or glass to her lips. This did not amount to prodding and prompting. Since Maplewood did not go further when Margaret kept her mouth closed, their actions were within the scope of Margaret’s consent.
Last week, news sources reported that a judge of the Los Angeles County Superior Court appointed a conservator over the affairs of former Eagles bassist, Randy Meisner. The conservator was appointed to help make decisions about Mr. Meisner’s medical care, but not about his property. The conservatorship is temporary for now, pending a further hearing this fall which may determine whether or not it should be made permanent.
In Ontario, our closest equivalent to a conservatorship is a guardianship. There are two types of guardianships – one for personal care and another for property. A person may apply to the Court to be appointed as someone’s guardian for property, for personal care, or both. There is an alternative procedure, whereby the Public Guardian and Trustee will become a person’s statutory guardian upon receipt of a certificate of incapacity issued by a capacity assessor.
The tests for each kind of capacity are set out in Ontario’s Substitute Decisions Act, 1992. A person is incapable with respect to making decisions about the management of property if that person is unable to understand information that is relevant to making a decision in the management of his or her property, or if the person is unable to appreciate the reasonably foreseeable consequences of a decision (or lack thereof).
On the personal care side, a guardian may be appointed if the person is incapable of understanding information relevant to making a decision concerning his or her health care, nutrition, shelter, clothing, hygiene or safety, or is if the person is unable to appreciate the reasonably foreseeable consequences of a decision with respect to any of these.
The California ruling dealt with personal care decisions but did not appoint a conservator for property. Property decisions are sometimes thought of as being more cognitively demanding. However, Mr. Meisner’s story is a good reminder that each kind of capacity is its own creature. One cannot assume that a person who may be found incapable with respect to one function will necessarily be found incapable with respect to another.
Ontario’s Act creates another set of standards for the capacity to grant powers of attorney for property and yet another for granting powers of attorney for personal care. A person may be incapable of managing property or personal care, but may still be capable of appointing another person to make those decisions on his or her behalf. Creating a power of attorney while capable of doing so empowers the person to decide who will be responsible for making decisions and to provide the attorney with instruction or guidance in the event that difficult decisions need to be made. Having powers of attorney in place can sometimes eliminate the need for guardianship proceedings, which can be a difficult and costly process.
It is helpful in assisting our clients in statutory guardianship matters to get the PGT’s perspective. Dermot C.G. Moore did so in his paper presented at the Six-Minute Estates Lawyer on May 6, 2015. In it he comprehensively reviews the several factors that come into play in statutory guardianship applications, including:
- Who can apply – he discusses the differences in who can apply for guardianship of property and guardian of the person, and as replacement guardians (only certain persons can replace the PGT as statutory guardian of property: (i) the incapable person’s spouse; (ii) the incapable person’s relative; (iii) an attorney for property that does not grant authority over all the incapable person’s property (rare); and (iv) a trust corporation, if on consent of the incapable person’s spouse/partner (uncommon).
- Interim Arrangements – in statutory guardianship applications, the PGT will manage the incapable person’s property until the application is processed.
- Deferral to act – the PGT may decide to defer all or part of the administration for a short period of time where a replacement is likely and the finances of the client can be dealt with appropriately in the interim.
- Timing – statutory guardianships are often a more difficult route for applicants, as the PGT has more direct access to information, asks more questions and the process generally takes longer.
- Complexity – the time taken to process statutory applications is lengthened by a variety of factors, including self-represented applicants, the administrative process and competing applications.
- Security – security requirements in non-resident applicants are stricter in statutory applications.
- Refusals – the PGT may refuse the statutory application on the broad grounds of there being reasonable grounds to believe the applicant is unsuitable or the management plan is inappropriate. Mr. Moore’s paper cites several other specific grounds that have resulted in applications being denied.
Thanks for reading and have a great weekend,
An amendment to legislation with respect to the management of affairs on behalf of incapable people is currently being implemented in Oklahoma in an effort to protect the interests of the aging population.
Senate Bill 109 is being introduced on November 1, 2015 to allow a person to be subject to attorneyship and court-ordered guardianship at the same time. As it currently stands, the appointment of a guardian in Oklahoma automatically revokes any powers of attorney executed by that person, meaning that if a guardian is appointed in respect of personal care, no power of attorney (whether in respect of property or personal care) remains valid.
The update was proposed in light of situations in which a person has executed a power of attorney for property, but no such document is executed in respect of personal care. Prior to the amendment, the appointment of a guardian of personal care terminates the appointment of both attorneys for personal care and attorneys for property. Most common in Oklahoma are scenarios in which an attorney for property attempts to sell an incapable person’s property, but runs into problems when no attorney for personal care had been appointed to assist in determining new living arrangements after the sale of the property.
In Ontario, the appointment of a guardian pursuant to the Substitute Decisions Act similarly terminates the appointment of an attorney chosen to act in the same respect. However, in circumstances where an attorney is appointed in one domain only, the Court may appoint without disrupting the management by an attorney of the other aspect of decision making.
Ideally, when planning for one’s incapacity, both a power of attorney for property and a power of attorney for personal care should be executed. Often, the focus on incapacity planning is on financial matters and risks to leave a person’s personal care in limbo if capacity issues emerge later in life. While a guardianship application may be an option, the delay and expense in securing an appointment as guardian may not be in the best interests of the person.
Thank you for reading.
Many people wait until they do their will to appoint their power of attorney for personal care (and attorney for property). Given the unpredictability of life, and the fairly simple task of making a power of attorney, it might be better to get your powers of attorney done as soon as you can. If you don’t, the provisions of the Health Care and Consent Act (HCCA) will govern when you are not capable to make your own treatment decisions.
If you are not capable of consenting to treatment, section 20 of the HCCA dictates that the following people can make the decision for you, in order of ranking:
1. The guardian of personal care.
2. The attorney for personal care.
3. The representative appointed by the Consent and Capacity Board.
4. The spouse or partner.
5. The child who is at least 16 years of age or the parent.
6. The sibling.
7. Any other relative.
8. If no one is available, the Public Guardian and Trustee (PGT) will have to make the decision.
Section 20 of the HCCA also stipulates, among other things, that the substitute decision maker must be capable of consenting to the treatment, available to make the decision and willing to assume the responsibility of giving or refusing consent.
Section 20 further addresses the case where there is disagreement among equally ranking persons. In this situation, the physician must ask the PGT to make the decision. This is not often a favourable scenario, since it leaves the decision to the PGT, a stranger to the family, and does not allow lesser ranked family members to make the decision. Nor does it allow the equally ranked disagreeing persons to seek guidance from the Consent and Capacity Board (although joint guardians or joint attorneys can apply to the Superior Court of Justice for directions).
This is a good reminder that getting your powers of attorney in order will in most cases avoid disputes, expense and delays when decision time comes.
Thanks for reading and have a great weekend!
The Substitute Decisions Act governs the appointment of guardians for property. According to section 25, when a Judge orders an appointment for a guardian of property, he or she may “require that the guardian post security in the manner and amount that the court considers appropriate.” The purpose of the bond requirement is to protect the incapable person from the risk of losing their property or its value being significantly diminished. Because the Public Guardian and Trustee and trust corporations’ assets are significant enough to replenish an incapable person’s property if necessary, they are not required to post security.
An applicant who wishes to dispense with the security requirement must address it in an affidavit and explain why dispensing with the bond does not expose the incapable person to risks. As McCartney J. summarized in Sundell v Donylyk, “the law is clear that the bond is to protect the beneficiary … and if it is to be dispensed with, reasons should be given why there would not be risk if such a bond were not posted.” The fact that an applicant is the sole beneficiary of the incapable’s estate is not determinative of whether the bond requirement should be dispensed with.
In dispensing with the bond requirement, the court may attach other conditions to ensure that primary consideration is given to the interest of the incapable person. In Bytyci v Bytyci, for example, Pitt J. dispensed with the bond requirement but required the applicant to obtain court approval to encumber or dispose of the matrimonial home so as to protect the incapable from the risk of selling the home contrary to their best interests.
In Barnes v Barnes, the court rejected two schemes to avoid the bond requirement. In the first scheme, the guardian would have filed an “irrevocable direction” to the corporate trustee, which would have directed the trustee “not to pay any monies to me other than in repayment for funds expended on [the incapable] … and then only upon delivery of receipts for said funds.” By keeping the money out of the applicant’s hands, the scheme would have alleviated any concerns over conflict of interest. The court rejected this argument on the grounds that, once one is appointed a guardian, one may not delegate those powers to another.
In the second scheme, the guardian would have any expenditures pre-approved by the Public Guardian and Trustee. The court rejected this scheme as unworkable: “The Public Guardian and Trustee has neither the authority nor the resources to micro-manage the estate of every incompetent in Ontario.”
These decisions make it clear that each request for a dispensation of the bond requirement will be determined on a case-by-case basis.
Thank you for reading,
Supported and co-Decision-making: Law Commission of Ontario Considers Alternatives to Substitute Decision Making
I recently blogged about the Law Commission of Ontario’s discussion paper here and Suzana Popovic-Montag followed up on my post here. Today I want to discuss the third part of the paper, which deals with Ontario’s substitute decision-making systems.
Presently, Ontario’s substitute decision-making system is defined by five features. First, it is based upon a cognitive capacity threshold. Although the tests are specific to the decision in question, and although it is recognized that capacity can fluctuate, the tests have an “all-or-nothing quality” in the sense that one is either capable to make a decision or one is not. Second, individuals have the opportunity to choose their substitute decision-maker in most instances, as executing powers of attorney is relatively simple and inexpensive. Third, Ontario prefers relationships based on trust as the foundation of substitute decision-making. Where a substitute decision-maker does not already exist, priority is given to family members. Fourth, substitute decision-makers are encouraged to promote the participation of the persons over whom they exercise authority. Fifth, persons who lack capacity have certain procedural rights.
Ontario’s substitute decision-making system has been criticized as
inherently paternalistic and disempowering for persons with disabilities, based on ableist attitudes, and violating the equality and non-discriminatory guarantees in the Charter of Rights and Freedoms and other human rights instruments.
This is a strong argument to make and not one that I believe the broader legal community supports. Ontario’s substitute decision-making system, while flawed, is reasonably nuanced and attentive to the particular circumstances of the incapable. It affords them with procedural rights and legal protections. I would not go so far as to say it violates the equality provision of the Charter of Rights and Freedoms.
Nevertheless, it is certainly true that persons who have had a substitute decision-maker appointed over them experience a loss of autonomy which can expose them to significant stigma. While substitute decision-makers are encouraged to involve the person over whom they exercise authority in decisions made on their behalf, in practice the decision-maker may simply ignore the legally incapable person’s input altogether.
Another criticism of Ontario’s substitute decision-making system is that is therapeutically counter-productive. Substitute decision-making is intended to enhance the well-being of the incapable person by transferring decision-making into the hands of someone who is better able to determine what is best for the incapable person. Critics point out that this loss of autonomy can “have negative consequences for well-being, potentially resulting in depressive symptoms, feelings of helplessness, and the perpetuation of stigma about the individual.”
The Law Commission considers two alternatives to substitute decision-making: supported decision-making and co-decision-making.
In contrast to substitute decision-making, supported decision-making is based on the idea that “disability results from interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.” Thus, rather than trying to identify mental attributes that would render someone incapable of making decisions, a system of supported decision-making would work to provide persons with disabilities with the means to make their own decisions.
My concern with this approach is that it may render persons with disabilities more susceptible to undue influence. The benefit of a system that formally recognizes incapacity and appointment of substitute decision-makers is that it creates clear relationships under law between the substitute decision-maker and the incapable, with duties and responsibilities that are legally enforceable. Any system of supported decision-making would have to address concerns about undue influence.
In a system of co-decision-making, a person with diminished capacity would be allowed to make their own decisions, provided that their co-decision-maker approved of them. The co-decision-maker would not be allowed to refuse reasonable and responsible decisions made by the person with diminished capacity. In effect, the co-decision maker’s advice and assistance would restore full capacity as closely as possible. This seems to me a better approach than supported decision-making, because it creates a more formal relationship, the integrity of which the legal system is well-equipped to protect.
In practice, many substitute decision-makers already carry on a form of supported or co-decision-making with the person over whom they exercise legal authority. Furthermore, it is apparent from criticisms of substitute decision-making that one of the major complaints of persons who lose legal capacity is the stigma associated with the loss. Alternative decision-making systems may work to reduce that stigma, but a reduction in stigma also requires broad attitudinal adjustments that the legal system may not be best positioned to address.
Thank you for reading,
As Ian Hull noted, the 320 page paper proposes several reforms. One of the proposals I found more interesting was the proposal to change the standards and tests for capacity in Ontario law. We have previously blogged about capacity, here, here, and here.
The paper lists five key elements of Ontario’s current approach to legal capacity
- Legislative presumption of capacity: the burden of proof rests on the party asserting incapacity, and the standard of proof is a balance of probabilities.
- Functional basis for assessment of capacity: when assessing capacity, assessors look at the specific functional requirements of the particular decision, instead of looking at an individual’s abilities in the abstract.
- Domain or decision-specific capacity: the assessment of capacity is specific to the particular decision. An individual may be capable of making some decisions and not others.
- The “understand and appreciate” test: the individual must have the ability to process information and the ability to reason. They do not necessarily need to actually understand and appreciate the information. This distinction is intended to protect, as an illustration, patients who, for example, do not understand the information because the physician’s explanation was poor, or “being better able to understand if under less sedation.”
- Time limited determination of capacity: capacity can vary over time. Accordingly, assessments of capacity should be limited to the period during which “no significant change in capacity is likely to occur.”
In practice, the paper argues, courts have difficulty distinguishing the ability to understand from actually understanding and appreciating the information in question. When an individual’s capacity is assessed, the assessor often, in practice, assesses actual understanding as opposed to an ability to understand.
A loss of capacity can trigger the operation of a power of attorney or the appointment of a guardian. Both these processes can incur significant legal costs. Where the loss of capacity is temporary, however, it “may be relatively difficult to ensure that substitute decision-making structures are in place only where they are truly necessary.”
The paper poses the following question:
Are there specific ways in which the current ‘understand and appreciate’ test for legal capacity should be clarified in order to improve its application? Or are there other means through which further guidance on its proper application could be provided? Are there specific ways in which the legislative test should be amended so that it better reflects the social and contextual aspects of legal capacity?
One possible remedy is to further clarify the statutory language to offer additional guidance to capacity assessors. In the UK, for example, the Mental Capacity Act specifies individuals are not capable to make a decision if they cannot “understand the information relevant to the decision,” “retain that information” or “use or weigh that information as part of the process of making the decision.” While this language clarifies the assessor’s task, it comes at the expense of flexibility.
A remedy to address the problem of fluctuating levels of capacity could be to require periodic reassessments. Section 20.1 of the Substitutes Decisions Act, 1992 for example, already requires statutory guardians of property to assist a legally incapable person to have a re-assessment, provided that it is requested by the incapable person. This could easily be changed to require mandatory re-assessments. The problem with this approach is that for persons whose capacity is unlikely to change, it simply introduces further cost and complexity to an already complex and expensive process.
Thank you for reading,
Law Commission of Ontario Proposes Changes to Ontario’s Capacity, Decision-making and Guardianship Legislation
I recently blogged about proposed changes to Nova Scotia’s Powers of Attorney Act. The Law Commission of Ontario is now also considering changes to Ontario’s legislation that governs legal capacity, decision-making and guardianship, including the Substitute Decisions Act, the Health Care Consent Act and the Mental Health Act.
The 320 page discussion paper not only offers a background on Ontario’s existing statutory framework, but also a discussion on tests for legal capacity and mechanisms for carrying out capacity assessment. It further “explores issues related to decision-making” and “issues related to how the law is meaningfully accessed.” Finally it “highlights issues for ensuring effective law reform in this area, including how to incorporate monitoring and accountability mechanisms into new laws…”
As you have no doubt surmised, the paper is far too comprehensive and detailed to discuss in its entirety in one blog post, so I will confine my comments today to the first part of the paper, which examines the existing legislation. In particular, I found the paper’s identification of the principles underlying Ontario’s statutory framework illuminating.
The paper notes that while there are three different statues which deal with “different areas of decision-making or different settings” they all nevertheless “embody a consistent approach to legal capacity, decision-making and guardianship.” The paper recognizes six underlying principles to this approach:
- Presumption of Capacity: In Ontario, an individual is presumed to be capable of making their own decisions, and others may rely on that presumption, provided there are no “reasonable grounds for believing otherwise.” Natalia Angelini has blogged about the presumption of capacity here.
- Cognitive and decision-specific approach to capacity: An individual need not make wise decisions but they must have the ability to “understand and appreciate” the relevant information to the specific decision. We have previously blogged about this requirement here.
- Tendency towards a professionalized assessment of capacity: legislation has created in some areas classes of “capacity assessors” who have “particular professional backgrounds” and training requirements. Natalia Angelini has blogged about capacity assessors here.
- Substitute decision-making approach: decisions must be made by substitutes, rather than as a joint decision by the incapable and someone supporting them.
- Procedural rights: Persons who are undergoing capacity assessments have certain procedural rights. For instance, under the Mental Health Act, an individual examined for capacity to manage property is entitled to rights advice.
- Preference for the private realm: Ontario prefers the use of family and friends as substitute decision-maker over bodies like the Office of the Public Guardian and Trustee. Accordingly, it is relatively simple to execute a Power of Attorney.
I will return to this paper in the future, as I believe it makes some intelligent and sensible proposals. For the moment, however, I would simply state that the paper’s identification of the principles underlying Ontario’s substitute decision-making legislation accords perfectly with my own experiences in the area.
Thank you for reading,
Was just getting nostaligic about Casey Kasem… I remember, as a kid, that distinct voice listing the top 10 songs of the week.
Now he is the subject of a court case between his kids and his wife. Casey is apparently suffering from dementia. His wife of 34 years moved him from his Los Angeles home without telling his kids. A case of “dad-napping” is not that unfamiliar a situation.
Conflicts between children and the “second spouse” over the care of their parent/spouse happen regularly. Decisions about nursing homes and end of life treatment are the most dramatic and difficult. Who should make those kinds of decisions? Who should be informed and consulted? Who knows best? These are all important questions that come up over and over again.
In most jurisdictions, people are allowed to designate substitute decision makers to make important health care decision for them if they can’t make them for themselves. But in most cases, those substitute decision makers have duties to consult with supportive family members and friends. Just who falls into the category of “supportive” family and friends is rarely defined and it is usually left to the substitute decision maker themselves to decide. That can leave caring family members out in the cold and make them resort to litigation to continue being involved in their loved one’s life…
Most estate matters are fights involving money. In a sense, those are the easy ones to solve. “Dad-napping” cases, involving an aging and incapable parent/spouse, rival child custody disputes in their emotional impact and are much more difficult to resolve.
Thanks for letting me blog,