Tag: personal care

05 Aug

Decision-making by an Attorney for Personal Care

Rebecca Rauws Power of Attorney Tags: , , , , , , , , , , , , , 0 Comments

The job of being an attorney for personal care for an incapable person is not an easy one. The attorney often has to make difficult decisions regarding an incapable person’s medical care and treatment, personal care, food, clothing, and shelter. A particularly difficult decision that can arise in the case of older adults is the decision of whether an older incapable person should be placed in a retirement or long-term care home.

I recently came across a decision that considered a personal care attorney’s decision to move his mother, Ann, into a long-term care facility. As set out in Corbet v Corbet, 2020 ONSC 4157, prior to the move, Ann had been living with her personal care attorney’s son (Ann’s grandson), and his spouse. The personal care attorney lived in the USA. The grandson and spouse were the defendants to an action brought by the personal care attorney, and the defendants had brought the motion that was dealt with in the decision. The motion sought an order that Ann return to live with the defendants.

The Corbet decision discussed the powers and duties of an attorney for property, as governed by the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Section 66 of the SDA provides that a personal care attorney must exercise his or her powers and duties diligently and in good faith. If the attorney knows of prior wishes or instructions of an incapable person, they shall make their decision in accordance with those prior wishes or instructions. If the attorney does not know of a prior wish or instruction, or if it is impossible to make the decision in accordance with the wish or instruction, the attorney shall make the decision in the incapable person’s best interests. Although making a determination of what is in the incapable person’s best interests can be difficult, the SDA does set out the factors that the attorney must consider, as follows:

  • the values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;
  • the person’s current wishes, if they can be ascertained; and
  • the following factors:
    • (i) Whether the guardian’s decision is likely to,
      • improve the quality of the person’s life,
      • prevent the quality of the person’s life from deteriorating, or
      • reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.
    • (ii) Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.

Ultimately, the court determined that it was not prepared to grant the order sought by the defendants. Some of the factors that were determinative included the following:

  1. Ann had entrusted her only son as her attorney for personal care.
  2. The court should not attempt to micromanage an attorney’s day-to-day handling of an incapable person’s affairs unless there is clear evidence the attorney is not acting in good faith.
  3. Before making the decision to move Ann to the long-term care facility, the attorney consulted with Ann’s family doctor, and had a comprehensive assessment of the defendants’ home done by the LHIN case manager.
  4. Although Ann had expressed that she wanted to “go home”, the court found that Ann perceived her home as the home she had shared with her late husband, and not the defendants’ home.
  5. There was no evidence that the personal care attorney failed to consider the best interests criteria as set out above.
  6. There were allegations that the defendants had mistreated or neglected Ann, and that they had misused or misappropriated her money. As a result, it remained to be determined whether they were “supportive family members” with whom the attorney has a duty to consult under the SDA.

Attorneys for personal care would be well-advised to carefully consider their decisions, in light of the guidelines set out in the SDA, and to document their considerations in making decisions on behalf of an incapable person.

Thanks for reading,

Rebecca Rauws

 

These other blog posts may also be of interest:

30 Jan

What Impact Might MAID Have on a Will Challenge?

Nick Esterbauer Capacity, Estate Litigation, Health / Medical, Wills Tags: , , , , , , , , , , 0 Comments

In preparing my other blogs this week, I spent some time considering the issue of how we might see the increased access to medical assistance in dying (MAID) impact our practice area.  As such, I thought that I would finish off this series of blogs focusing on MAID with a hypothetical question I have not yet encountered in practice, but which is inevitably going to be raised: what impact, if any, does MAID have on a will challenge?

Our regular readers will already be well aware that capacity is task, time, and situation specific.

Presumably, the standard of capacity applying to the decision to access MAID is that required to make other personal care decisions, such as receiving or refusing medical treatment.  Section 45 of the Substitute Decisions Act, 1992, defines incapacity for personal care as follows:

A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

I have been unable to find any literature suggesting whether the standard may be somewhat heightened as a result of the significant impact of the decision to actually receive MAID.

The standard for testamentary capacity typically applied remains that set out in the old English authority of Banks v Goodfellow.  While some have suggested that the standard of testamentary capacity be updated, we are generally concerned with the same, well-established criteria:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

While, historically, standards of mental capacity were viewed as hierarchical, recent case law and commentary have strayed from this understanding, instead viewing the different standards of mental capacity as just that: different.  Courts will consider whether an individual understood the nature of the decision being made and appreciated the reasonably foreseeable consequences of their decision.

Consent to MAID must be confirmed very shortly before it is administered, which restriction has been of considerable controversy.  While possessing the capacity to confirm consent to obtain MAID may not correspond to testamentary capacity, it may nevertheless become evidence suggestive of a degree of mental capacity that is valuable (in conjunction with other evidence) in establishing that a last will and testament executed shortly before death is valid.

Whether the fact that MAID has been achieved will be important evidence on a will challenge in support of testamentary capacity or not remains to be seen, but it will be interesting to see how the laws relating to MAID evolve and how incidents of MAID may impact estate law over time.

Thank you for reading,

Nick Esterbauer

19 Nov

Personal Care Compensation

Lisa-Renee Elder Law, Guardianship Tags: , , 0 Comments

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, [1999] 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.

Thanks for reading!

 

Lisa-Renee Haseley

30 Jul

Incapacity Planning Among Cancer Patients

Nick Esterbauer Capacity, Health / Medical, Power of Attorney Tags: , , , , , , , , , , 0 Comments

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.

Thank you for reading.

Nick Esterbauer

03 Jul

Hull on Estates #382- Attorneys for personal care

Hull & Hull LLP Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , 0 Comments

Listen to Hull on Estates #382 – Attorneys for personal care

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 hull.lawyers@gmail.com, or leave a comment on our blog page.

Click here for more information on Paul Trudelle.

Click here for more information on Josh Eisen.

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