Tag: personal care
In Ontario, the courts have held that personal care compensation must be “reasonable”. To determine what is “reasonable” the courts must take into consideration the specific circumstances in each case. Factors to be considered were set out in the hallmark case Re Brown,  O.J. No. 5851, 31 E.T.R. (2d) 164, which include:
- the nature and extent of the services provided;
- the need for the service;
- the qualifications of the person providing the services;
- the value of such service; and
- the period over which the services were provided.
In the recent case Childs v Childs, 2015 ONSC 4036, Justice Tranmer was asked to determine whether a child of an incapable woman should be awarded compensation for providing care to her mother. In doing so, Justice Tranmer considered not only the factors set out in Re Brown but also identified additional factors that should be considered when the court is called upon to make an order for personal care compensation in the context of a parent and child relationship.
Eileen Childs has four adult children: Michael, Andrew, Peter and Caroline. She raised all of them from birth with her late husband. As Eileen’s battle with Alzheimer’s dementia and other health challenges got progressively worse, it became clear to her children that she could no longer manage her property and care for her person. Although Eileen had significant liquid assets available to cover the cost of proper homecare, her children could not agree on the care their mother was to receive.
It was Eileen’s wish to remain living in her own home. To grant this wish her daughter, Caroline, moved into her mother’s home to provide full-time in-house care and support. Eileen’s sons, Michael and Andrew also provided some care to their mother for a short period of time.
The issue to be addressed by Justice Tranmer was whether Caroline was entitled to be compensated for the in-house care that she provided to her mother.
In granting Caroline a $500 monthly stipend for compensation, Justice Tranmer makes it clear that “a child should not be paid to care for an ailing mother” but nonetheless acknowledged the principle that a guardian or attorney for personal care may be reasonably compensated for personal care provided to an incapable person. In considering the reasonableness in this case, he identified three additional factors that should be considered by the court, namely:
- the financial circumstances of the incapable person at the time the request for compensation is made;
- whether the payment of compensation poses a risk to the incapable person’s finances; and
- any sacrifices made or losses suffered to undertake the care of a parent.
In light of Justice Tranmer’s decision it appears that when a child is making a claim for personal care compensation they must keep in mind that they may not be entitled to receive compensation for the care that they provide if the payment of compensation would have a negative consequence on their parent’s finances.
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The results of a recent study published in the American Medical Association Oncology Journal suggest that more patients with cancer are obtaining Continuing Powers of Attorney for Property than in the past. Approximately 74% of Americans facing cancer have a Power of Attorney for Property in place. However, while not considered statistically significant, the use of Powers of Attorney for Personal Care and frequency of discussion with respect to end-of-life preferences have actually become less prevalent in recent years, with rates of only 40% (down from 49% in 2000) and 60% (down from 68%), respectively.
Older studies have suggested that physicians should re-evaluate a patient’s mental capacity after significant changes in medication, infection, metabolic disturbances, or diagnosis with a new medical problem, including cancer diagnosis and treatment, which may contribute to changes to mental capacity. While mental capacity is time and task-specific and will require analysis on a case-by-case basis, memory and concentration problems are frequently linked to certain chemotherapy regimens. Some reports suggest that oncology patients may experience the same mental impairment that is often seen at increased rates within the aging population. Further, the cognitive difficulty that is often referred to as “chemo fog” is believed to become more debilitating with the intensity of the chemotherapy. Other cancer treatments, including radiation and surgery, are believed to be less likely to influence a patient’s mental capacity, but medications, such as narcotic painkillers, that may be used to address treatment side effects can nevertheless impact lucidity and the understanding of medical procedures to which the patient’s consent is required. Further, when cancer originates or metastasizes within the brain, neurological functioning may be more likely to become compromised, whether temporarily or for the long term.
The presence of powers of attorney within the cancer community according to the study conducted by Johns Hopkins School of Medicine does not differ greatly from the estimate of 71% of Canadians that have Powers of Attorney in place. Generally, it is a good idea to ensure that individuals of all ages take the time to consider an incapacity plan and to have Power of Attorney documents prepared. However, cancer patients may be more likely than others to have to make important decisions between different treatment options. In situations where diminished capacity may become a more likely scenario due to illness (or related treatment) or age, arrangements should be made to ensure that, if one becomes incapable of making important decisions him or herself, someone who can be trusted is authorized and prepared to do so on their behalf.
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Today on Hull on Estates, Paul Trudelle and Josh Eisen discuss providing services as an attorney for personal care. If you have any questions, please email us at firstname.lastname@example.org, or leave a comment on our blog page.
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