Category: Health / Medical
Plan Well Guide’s Toolkit for Legal Practitioners: Helping You Help Your Clients Plan for Incapacity
Last year, my colleague Nick Esterbauer blogged about the Plan Well Guide – a free online tool to assist individuals with their advance care planning. An advance care plan sets out how a person wishes to be treated during a serious illness or health crisis. The Plan Well Guide helps users to create a ‘Dear Doctor’ Letter explaining their values and preferences with respect to their future medical care, which can then be given to their physician and substitute decision-makers to ensure that their wishes are known. For a more in-depth look at the Plan Well Guide and the process of creating a Dear Doctor letter, you can read Nick’s blog here.
Recently, the Plan Well Guide launched a new toolkit designed for legal practitioners. This free online toolkit is intended to help lawyers help their clients become better prepared for future serious illness and incapacitation. In addition to various educational resources for both lawyers and their clients, the toolkit includes:
- a sample power of attorney for personal care;
- a sample advanced health care directive;
- a sample personal directive;
- a sample ‘Dear Doctor’ letter; and
- a step-by-step guide on how lawyers can incorporate the Plan Well Guide into their practice.
Of course, the sample legal documents contained in the toolkit should be amended to reflect the client’s specific set of circumstances and the laws of the applicable jurisdiction.
What I like most about the Plan Well Guide’s new toolkit is that it highlights the importance of a multidisciplinary approach to advance care planning. An effective advance care plan – that is, a plan which facilitates medical substitute decision-making that is consistent with the incapable person’s actual values and preferences – depends on the collaborative efforts of a person’s lawyers, doctors, and substitute decision-makers. The Plan Well Guide and its new toolkit offer accessible ways for legal professionals, health care professionals, and their clients/patients to coordinate their efforts to make serious illness planning more effective. If a lawyer is interested in improving the quality of future medical decision-making and patient outcomes for their clients, the Plan Well Guide’s toolkit for legal practitioners is certainly worth looking into.
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As estates practitioners know well, the medication that an individual takes could reflect underlying conditions that affect mental capacity. High doses of pain medications or other medication prescribed to treat serious physical ailments may also impact a person’s cognition.
A recent article on Considerable highlights the impact that certain common medications may have on mental capacity. An estimated 25% of seniors take “anticholinergic” drugs to treat a variety of common issues, including allergies, insomnia, and asthma. These medications are known to target acetylcholine, a chemical messenger that plays an important role in concentration, cognition, and memory. Some drugs (including over-the-counter medications as well as those for which a prescription is required) impact acetylcholine levels more than others and, when they are taken together, can have a cumulative effect. As a result, high doses of anticholinergic drugs, which are often believed to have only inconsequential side effects, can interfere with brain messaging and result in symptoms consistent with dementia.
The article refers to a patient whose score on a Mini-Mental Status Examination increasing from 11 to 28 out of 30 after a readjustment of her medication, which included common antihistamines and medication for mood and gastrointestinal issues. Further research is being conducted on the short-term and long-term effects of anticholinergic use, as there is concern that prolonged use may cause irreversible cognitive decline.
As our readers know, due to the nature of capacity standards and importance of reviewing capacity on a case-by-case basis at the time of the relevant decision or instructions, it may be worthwhile to consider whether medication, even that commonly prescribed to seniors, may be a contributing factor.
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Other blog entries that may be of interest:
Who is ready for some good news? Our firm has been interested in the issue of organ donation for some time now. In 2012, we blogged about whether P.E.I. may be the first province in Canada to automatically enroll all of its people as organ donors until you chose to actively “opt-out”. In 2014 and 2019, we blogged about Nova Scotia’s efforts in this regard.
Today, we are happy to report that this is now the new reality in Nova Scotia as of January 18, 2021.
The Human Organ Tissue and Donation Act was passed in April, 2019. The Act, when it came into effect this Monday, meant that everyone in Nova Scotia are now considered to a potential organ donor until they “opt-out”. This new “opt-out” system is the first of its kind in North America according to the Huffington Post. Ontario, like everywhere else, has an “opt-in” program where you have to actively sign up in order to be considered as a potential organ donor whereas the “opt-out” system is the opposite of that. Nova Scotia is hoping that this will dramatically increase the rate of organ donation in the province like the 35% increase that has been noted in certain European countries.
In order to balance and respect the wishes of each individual, the director of the organ donation program has indicated that the known wishes of an individual will be respected even if he/she has not formally opted out.
This is an issue that is personally meaningful to me because of the statistics surrounding organ donors and organ recipients of colour. People of colour tend to be underrepresented within “opt-in” systems of organ donation. According to the Gift of Life, while race and ethnicity is not determinative of a match, a match is more likely to be found within one’s own ethnic community because of compatible blood types and tissue markers. 60% of patients waiting for a transplant are from communities of colour. I, myself, am registered with the Gift of Life and I can attest to how easy and painless it was to sign up.
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Jennifer Philpott’s blog post on the Initial Recommendations from Ontario’s Long-Term Care COVID-19 Commission explains that the mandate of the Ontario Long-Term Care COVID-19 Commission (the “Commission”) is “to investigate how and why COVID-19 spread in long-term care (“LTC”) homes, what was done to prevent the spread, and the impact of key elements of the existing system on the spread.”
As noted in our previous blog post, Hull & Hull LLP recognizes and commends the Commission, led by the Honourable Justice Frank N. Marrocco, with John E. Callaghan and Kate McGrann as Commission Co-Lead Counsel, for their hard work and efforts towards protecting some of the most vulnerable citizens in our province.
Since the Commission’s First Interim Letter dated October 23, 2020, over 100 homes are experiencing an outbreak and more than 300 residents have died. On December 4, 2020, the Commission released their Second Interim Letter which focuses on resident care and on in-home leadership, and provides the Ministry of Long-Term Care (the “Ministry”) with various the following recommendations:
- Leadership and Accountability in Long-Term Care Homes
The Commission notes that the fundamental principle in the Long-Term Care Home Act states that
“A home is primarily the home of its residents and is to be operated so that it is a place where they may live with dignity and in security, safety, and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met.”
The Commission emphasized that leadership matters. They found that in homes where leaders were visible and provided clarity around staff roles and responsibilities fared better than those where the leadership was less engaged.
Amongst other things, the Commission found that there was confusion around who was responsible for maintaining resident quality of care in LTC homes during the pandemic and that it was unclear as to whose responsibility it was in the LTC home’s leadership team of the Executive Director, Director of Nursing and Personal Care and Medical Director. The Commission also found that these leaders were not always accessible or on-site.
The Commission recommended that there should be a clear lead for quality of care amongst the leadership team of the Executive Director, Director of Nursing and Personal Care and Medical Care in each LTC home, and that this individual must be on-site each day in a full-time position and should be held accountable for resident quality of care. Further, the Commission noted that the Province should provide the financial resources necessary to effectively support the lead for quality of care in carrying of their role and responsibilities.
- Performance Indicators
The Commission recommended using performance indicators to assess each home’s readiness to prevent and manage COVID-19 outbreaks. Specifically, the Commission found that while the current six clinical indicators tracked in the LTC home performance reports are a good first step in advancing transparency and flagging issues in LTC homes, this data does not provide other important insight on the quality of care received by residents and their experience in the home.
The Commission noted that indicators in areas of staffing (such as staffing mix, ration of residents to staff and ration of residents to staff with clinical expertise, level of staff engagement, etc.), PPE supplies and resident and family satisfaction with care at the home should be monitored and publically reported.
The Commission recommended that the LTC home performance reports should include performance metrics such as resident and family satisfaction, staff engagement, staging levels, and supply of PPE, as well as recommended that the home performance reports be publically posted in a single and centralized location and be updated more frequently, so that the public and other homes can assess and compare homes to one another as well as search and access a comprehensive picture of each home’s performance.
The Commission also recommended focused inspections to assess compliance with measures known to reduce the impact of the virus. Specifically, several issues have surfaced that the Commission believes require urgent attention, including:
1. The discontinuance of Resident Quality Inspections (“RQIs”) in all LTC homes
Although in 2013, the Ministry of Labour, Training, Skills and Developed (“MLTSD”) recognized that comprehensive inspections would help identify systemic issues and committed to completing an RQI in every home by the end of 2014, in response to the Auditor General’s 2015 recommendation “to prioritize comprehensive inspections based on LTC homes’ complaints and critical incidents and other risk factors”, in order to clear a backlog of almost 3,000 complaints and critical incident inspections, the Ministry introduced a risk-based approach to inspection. Although all LTC homes were still to be inspected every year, 329 LTC homes received an RQI in 2018, 27 homes received an RQI in 2019 and from March 1 to October 15, 2020 only 11 LTC homes received a proactive inspection. This reduction in RQIs, which are intended to provide a holistic review of operations in the homes, left the Ministry with an incomplete picture of the state of Infection Prevention and Control (“IPAC”) and emergency preparedness.
The Commission recommended to reintroduce annual Resident Quality Inspections for all LTC homes and require all reactive inspections occurring during the pandemic to include an IPAC Program review. The Commission also recommended that the Ministry request an appropriate funding in the upcoming 2021 provincial budget to hire and train inspectors to implement annual RQIs.
The Commission was also concerned with the lack of enforcement and follow-up verification of compliance with Orders issued by the Ministry. From 2018 to 2020, Plan of Care has been identified as the top area of non-compliance identified from complaint inspections. The Commission noted that IPAC issues rarely made it to the list of the top ten areas of non-compliances, showing that it was rarely a focus of any inspections.
The Commission recommended that the Ministry improve enforcement by prioritizing timely responses to non-compliance with IPAC and Plan of Care Orders.
3. Coordination of Inspections
The commission noted that there was an absence of a cohesive approach to inspections completed by the MLTC, MLTSD and Public Health Units, which likely occurred because inspectors from all three organizations tend to carry out their duties independently. This disjointed approached proved detrimental for IPAC in LTC homes and with the near elimination of RQIs and minimal inspections initiated by IPAC complaints or critical incidents, LTC inspections provided little help in proactively identifying and dressing aps in infection control inside homes.
The Commission recommended that steps be taken to eliminate the siloed approach to MLTC, MLTSD and Public Health inspections through cross-training, the establishment of a centralized system of report sharing and inspector teams to address specific cross-cutting issues.
Thank you for reading.
Ontario’s Long-Term Care COVID-19 Commission (the “Commission”) was formed in July 2020. The Commission’s mandate is “to investigate how and why COVID-19 spread in long-term care homes, what was done to prevent the spread, and the impact of key elements of the existing system on the spread.”
The Commission’s work is unique as it is conducting inquiries and providing recommendations to the Government of Ontario on an ongoing basis. Led by The Honourable Justice Frank N. Marrocco and Commission Counsel, John E. Callaghan and Kate McGrann, the Commission has met with over 200 individuals including experts, associations, unions, long-term care home operators, residents, families, and government officials. The Commission’s final report is due in April 2021.
The Commission’s First Interim Letter was released on October 23, 2020 and provided the following recommendations for the Ministry of Long-Term Care (the “Ministry”) to consider:
(1) Increase Staffing
Prior to the COVID-19 Pandemic, staffing challenges in long-term care facilities were well documented (for instance, in The Honourable Justice Eileen Gillese’s 2019 report of the Public Inquiry into the Safety and Security of Residents in the Long-Term Care System). The Commission recommends that the Ministry ensure that recruitment of long-term care staff focuses on diverse hiring practices to meet it’s residents’ acuity and complex care needs.
Further, the Commission recommends that more full-time care positions are created to increase stability amongst and retention of staff, which would further the continuity of care for residents. The Commission suggests that the Ministry implement the findings of its Long-Term Care Staffing Study, which was released in July 2020. These findings include providing at least four hours of direct care per resident per day and increasing funding to hire more nurses and PSWs to increase the staff to resident ration in long-term care facilities.
The Commission acknowledged that family members and caregivers play an essential role and provide “not just physical care needs but the psycho-social well-being of residents.” In that regard, the Commission recommends that long-term care facilities provide family members and caregivers “ongoing, safe and managed access to long-term care residents.”
(2) Strengthen Healthcare Sector Relationships and Collaboration
From its inquiries, the Commission uncovered that communities where long-term care facilities had pre-existing relationships with hospitals and public health units were better equipped to prevent or control COVID-19 outbreaks. On this basis, the Commission recommends that long-term care facilities likely to encounter difficulties (i.e. high infection rates in the community; past outbreaks; etc.) should implement a “collaboration model” between the facility, local hospital(s), and public health unit(s). The Commission’s letter urges the Ministry and the Ministry of Health to take a proactive approach and facilitate the collaboration model through defined supports and surge capacity for each long-term care home.
(3) Improve Infection Prevention and Control (“IPAC”) Measures
The Commission’s investigation revealed that adherence to IPAC measures is key in order to prevent community spread of COVID-19 into long-term care facilities and between staff and residents. The Commission recommends that long-term care facilities designate an IPAC lead. The IPAC lead would be responsible for monitoring, evaluating, and ensuring compliance with protocols. The IPAC lead would provide training to staff and access the local IPAC centre of expertise as necessary. The Commission strongly recommends that in the short term, inspectors from the Ministry, local public health unit(s), and others who can be trained should be sent into long-term care homes to ensure that proper IPAC protocols are being followed.
Residents of long-term care facilities are at a greater risk of contracting severe illness and death from COVID-19 than other populations. Consequently, the Commission suggests that residents and staff receive priority access to testing and faster results. If residents test positive for COVID-19, the Commission recommends that long-term care homes, hospitals, and public health units formulate plans to allow residents to transfer to an alternative setting in order to isolate from others and recover from the virus.
Hull & Hull LLP commends the efforts of the Commission for its proactive efforts towards protecting the most vulnerable citizens of our province. A follow-up blog will be released in the coming weeks summarizing the Commission’s recommendations from its Second Interim Letter.
Thank you for reading.
Just as an economic recession has serious ramifications for our society, so too does a social recession. A social recession can be described as a phenomenon whereby social bonds and human connection unravel the longer we are without interaction. Similar to an economic downturn, a social recession can have significant physical and psychological effects on people. Of particular concern to many is the effect that such a recession will have on the elderly, an already vulnerable population.
Restrictions in long-term care homes resulting from the Covid-19 pandemic have only magnified a deeper rooted pandemic of loneliness that was already in existence. The virus also shed light on an already strained and crumbling system. CBC Marketplace found that 538 of the 632 long-term care homes in Ontario were repeat offenders of abuse, inadequate infection control, inadequate hydration, unsafe medication storage, and poor skin and wound care. These homes were in direct violation of the Long-Term Care Homes Act and Regulations.
The importance of human connection cannot be underestimated. Julianne Holt-Lunstad, a professor of psychology and neuroscience at Brigham Young University, found that people with higher levels of social connection experience less inflammation (which is attributed to many chronic diseases) than those who are more isolated. Toronto long-term care resident, Devora Greenspon, although not infected with Covid-19, described her loneliness as “so deep it feels like a disease.”
Residents in Ontario’s long-term care homes have pleaded with the government to address the mass devastation caused by social isolation. It is crucial that elders and long-term care residents are protected from the spread of Covid-19. However, it is equally as important to halt the plague of loneliness from spreading any further. There must be a greater focus on the devastating effects of isolation on elders’ mental health as a healthy mind can often be the greatest weapon against disease. The inevitability of a social recession should not be overlooked.
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Suzana Popovic-Montag and Tori Joseph
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.
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Life insurance can be an important part of an estate plan, be it taken out to fund payment of anticipated tax liabilities triggered by death, to assist in supporting surviving family members, or to equalize the distribution of an estate within the context of the gift of an asset of significant value (such as a family business) to one child to the exclusion of another, who can be designated as beneficiary of the policy.
In a time when many Canadians are facing their mortality and taking the pause from normal life as an opportunity to review and update estate plans, many Canadians are turning their minds to other aspects of estate planning, including supplementing an estate plan with life insurance. A recent Financial Post article suggests that life insurance applications have doubled during the pandemic, as more Canadians take steps to plan for the unexpected during this period of uncertainty.
At the same time, premiums for new permanent life insurance policies have increased by as much as 27%. While term life insurance policies may remain a more affordable option, they too are anticipated to become more expensive, with upcoming premium increases of up to 20%. The increase in premiums has been linked to lowering interest rates and restrictions to the investment options available to insurance companies.
Other changes to life insurance during the pandemic include the exclusion of the standard medical examination required in order to obtain some types of coverage. The maximum coverage offered by many providers without a medical exam has increased to reflect limitations to the ability for applicants to safely attend an in-person examinations. For other providers and types of plans, medical examinations are simply on hold.
Lastly, insurance companies have updated intake questionnaires to include COVID-screening questions. If an applicant is experiencing potential symptoms, they may be required to wait two weeks before taking out the policy, but are not typically ineligible from coverage altogether. Some insurers, however, are no longer offering new coverage to seniors or others who are at a higher risk of complications during the period of the pandemic.
One life insurance provider has already doubled its projected COVID-19-related payouts during 2020 from the figures it had released earlier this year. While there may have been changes to certain eligibility requirements and the cost of life insurance, it remains a suitable estate planning tool for many Canadians.
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I learned about Blue Zones recently through Zac Efron’s new Netflix travel show, Down to Earth with Zac Efron. Episode 4 brings Zac and the audience to Sardinia where Zac meets with Dr. Giovanni Pes, nutritionist and medical statistician, and Dr. Valter Longo, bio-gerontologist, to discuss their research on the centenarians who live there. Blue Zones are regions of the world where people live much longer on average than everywhere else. This concept was coined by Dan Buettner and there are five Blue Zones in the world:
- Sardinia, Italy
- Okinawa, Japan
- Loma Linda, California (side note: California is also home to some of the world’s oldest-known living trees)
- Nicoya Peninsula, Costa Rica
- Icaria, Greece
According to Wikipedia, these Blue Zones have the highest rates of centenarians (i.e. people age 100 or above), and the people who live there suffer a fraction of the common diseases that ails the rest of the world and they enjoy more years of good health.
During the episode, Zac also visits a local woman who was born on April 15, 1920. She was 98 years old when the episode was filmed. Her husband had lived to 103 years old before his passing. According to Dr. Longo, it is extremely rare to have a couple with such longevity. Thereafter, Liliana was asked to do a cognitive test that one-third of centenarians or people with dementia will have trouble with, but Liliana does this with flying colours by accurately drawing the numbers on a clock and overlapping shapes on camera.
Liliana’s test was administered in her native language. In North America, the Montreal Cognitive Assessment (also known as the MOCA) is commonly administered to seniors as a screening tool for cognitive impairment like dementia. The MOCA is in the news recently as a result of Donald Trump’s interview with Chris Wallace on Fox News Sunday. Trump didn’t actually identify the exact cognitive test involved but he was proud to have “aced” the test.
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The late Donald Farb called his insurance company to renew his travel insurance policy before his trip to Florida. Mr. Farb spent about half an hour with a telephone representative from Manulife to complete the insurance application. He said “no” to a variety of questions regarding his medications and pre-existing conditions. Thereafter, the travel policy was issued on the basis of the information provided by Mr. Farb, and Mr. Farb went on his trip. While he was in Florida, Mr. Farb was unexpectedly hospitalized and he incurred over $130,000 (USD) in hospital expenses. Manulife later denied Mr. Farb’s claim for reimbursement and took the position that his policy was voided on the grounds of misrepresentation. Mr. Farb died before his insurance claim was resolved and his Estate commenced a court application to continue Mr. Farb’s dispute with Manulife.
In considering the Estate’s application, Justice Belobaba of the Ontario Superior Court of Justice reviewed the first principles of the Insurance Act and how the Act is designed to protect both the insurer and the insured. While insurance companies are protected by the insured’s duty to disclose, and the right to void coverage if there was a failure to disclose or misrepresentation, the consumer is protected by the requirement that the application process be done in writing so that the consumer will have the opportunity to review the information provided and to make any necessary corrections before the policy takes effect.
Justice Belobaba found that Manulife’s application process satisfied the requirements under the Insurance Act. He found that there was no issue with the telephone service provided by Manulife and the way that information is collected verbally from the applicant because the completed application form is emailed, in writing, back to the applicant for verification. The emailed and mailed copy of the insurance policy also contained a multitude of warnings asking the insured to review their policy carefully before traveling and that “the policy is void in the case of fraud, attempted fraud, or if you conceal or misrepresent any material fact in your application”.
As evidence before the Court, Justice Belobaba was provided with an audio recording of Mr. Farb’s telephone call with the insurance representative, and a copy of the materials that were emailed and mailed to Mr. Farb. Justice Belobaba found that Mr. Farb had two months to review his answers to the medical questions that were asked of him, and there was no evidence that Mr. Farb ever contacted Manulife to correct his answers, which was sufficient to conclude that Manulife was within its rights to void the policy.
The Estate’s application was dismissed, and you can read the full reasons for decision in Estate of Donald Farb v. Manulife, 2020 ONSC 3037, by clicking here.
Travel insurance should always be top of mind before travelling. It is a good idea to reach out to your insurance company and review your existing policy and the information contained in the underlying application before you go, especially under the present circumstances with COVID-19. The issue of whether testing and medical care for COVID-19 will be covered while abroad is important to consider before any travel plans are finalized.
Thanks for reading,