Tag: power of attorney
On October 1, 2021, the Law Commission of Ontario released its Final Report focusing on legal issues related to palliative care, end-of-life care and medical assistance in dying (collectively described as “last stages of life”).
One of the major areas for reform identified in the Report is dispute resolution for persons who are dying and those who support them. On this point, the Report notes:
Death, dying, and bereavement are highly emotional and important experiences for everyone involved – patients, family, friends and health care providers. Conflicts in the last stages of life may revolve around health care decision-making, a preference for treatment, or concerns about the quality of care being provided. Disagreements can take place in multiple care settings about many different matters. Disputes may involve patients, SDAs [substitute decision-makers], family members, health care facility and providers.
Current mechanisms in place for resolving disputes during the last stages of life include accessing the Consent and Capacity Board (a tribunal created under the Health Care Consent Act that adjudicates disputes related to capacity and decision-making), or the Superior Court of Ontario. For people in care, the Final Report also notes that some health care facilities have a “step up” dispute resolution process that can be accessed, for example, when communications between substitute decision-makers and treatment teams become polarized, which brings in bioethicists, risk managers, social workers or spiritual chaplains to provide information and guidance.
However, these measures can also fall short when dealing with conflicts arising during end-of-life care. The Final Report points out:
- Not all facilities have a “step up” dispute resolution process, meaning not all patients and substitute decision-makers have access to an early dispute resolution process before applying to the Consent and Capacity Board.
- The Consent and Capacity Board may not hear all disputes that deal with end-of-life care and may decline jurisdiction if:
- there is a dispute as to the validity of a Power of Attorney for Personal Care or a dispute over who is authorized to act as an individual’s substitute decision-maker;
- a patient or substitute decision-maker applies for directions because their wishes are not being followed by the patient’s treatment team; or
- a physician withholds or withdraws treatment and declares a patient dead or brain dead, and thus no longer a patient.
- Some patients also die before their applications are heard by the Consent and Capacity Board.
- It can take months to appeal a decision from the Consent and Capacity Board to the Superior Court. Currently, the Health Care Consent Act provides that appeals from Board decisions are to be scheduled “at the earliest possible date compatible with a just disposition”, but does not specify any actual timelines.
- Proceedings in the Superior Court, such as an appeal or an application for an emergency injunction, tend to be more complex and expensive than proceeding before the Consent and Capacity Board, and are often delayed, making them less suitable for end-of-life disputes where time is often of the essence.
After consulting with the public, focus groups and experts, and commissioning multiple expert research papers on topics salient to the last stages of life, the Law Commission has made a number of recommendations, including:
- The introduction of province-wide informal mediation services for end-of-life care, which would serve as an early dispute resolution mechanism and could be accessed by patients, substitute decision-makers (such as powers of attorneys), health care providers, and health care facilities.
- A review of the mandate and jurisdiction of the Consent and Capacity Board, including updating the Board’s powers to be more responsive to end-of-life cases.
- Amending the Health Care Consent Act to expedite appeals from the Consent and Capacity Board to the Superior Court of Justice that involve the last stages of life.
At this time, it is unknown whether the recommendations of the Law Commission will be implemented. However, in the meantime, a step that individuals can take to reduce potential conflicts and disputes from arising during the last stages of life is engaging in advanced health care planning. The Final Report notes:
Not enough people are planning for the last stages of life … Planning has been shown to improve patient outcomes; ensure alignment between a person’s values and treatment; lessen family distress; decrease hospitalizations and admissions to critical care; and decrease unwanted investigations, interventions, and treatments. Yet fewer than 1 in 5 Canadians have engaged in advance care planning.
Steps that you can take today include:
- appointing a substitute decision-maker, such as a Power of Attorney for Personal Care, to make decisions on your behalf;
- discussing your wishes, values, and beliefs with your substitute decision-maker. The Final Report points out that “[t]he law is clear that [substitute decision-makers] must consider the patient’s prior capable wishes, values, and beliefs, if known and applicable.”
- completing an advance directive or “living will,” which sets out your wishes in terms of future care.
Thanks for reading, and have a great day!
For further reading on advance care planning, see the following blog posts:
Something that no one ever wants to deal with, but which is sometimes an unfortunate reality, is the incapacity of a loved one. You may notice that your spouse or parent is not themselves, or has acted in a way that causes you some concern.
If the person has a power of attorney for property and a power of attorney for personal care, the attorney(s) named in those powers of attorney may need to step in and begin to manage the person’s finances and care. The terms of the power of attorney may set out when the attorney can begin acting. For instance, some powers of attorney for property are effective immediately upon execution by the grantor, and continue to be in effect in the event of any subsequent incapacity.
The power of attorney may also outline what kind of confirmation of the grantor’s incapacity is necessary before the attorney may begin acting on the grantor’s behalf. If the grantor is willing to cooperate in whatever capacity assessment is required, this step may be simple and straightforward to complete. However, as is often the case, the person may resist acknowledging any decline in their capacity or cognition, and may not wish to have their capacity assessed.
Pursuant to s. 78(1) of the Substitute Decisions Act, 1992 (the “SDA”), a person must consent to having their capacity assessed. If they refuse to be assessed, the assessor is precluded from performing an assessment.
If a person refuses to be assessed, it is possible to seek a court order for an assessment, pursuant to s. 79(1) of the SDA. In order to do so, the following will be required:
a) the person’s capacity must be in issue in a proceeding under the SDA; and
b) the court must be satisfied that there are reasonable grounds to believe that the person is incapable.
As a capacity assessment can be an intrusive process, the court takes requests to order them very seriously, and will often not be quick to order one. As discussed in Abrams v Abrams,  O.J. No. 5207, some of the factors that the court will consider in making a determination in this regard include the following:
i) the purpose of the SDA, being to protect the vulnerable;
ii) the nature and circumstances of the proceedings in which the issue is raised;
iii) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
iv) whether the assessment will be necessary in order to decide the issue before the court;
v) whether any harm will be done if an assessment does not take place; and
vi) the wishes of the person sought to be examined, taking into account his or her capacity.
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A power of attorney (POA) is a legal document that gives someone else the authority to make decisions on your behalf. The term “attorney” refers to the person(s) that you have chosen to act on your behalf. There are three types of POA in Ontario: general POAs for property, continuing POA for property, and POA for personal care. These documents can be very useful planning tools; however, it is important to understand the differences between them so that they can be used optimally. This blog compares the three types of POAs in Ontario.
1. General Power of Attorney for Property
A general POA for property can give your attorney the right to make decisions with respect to all or some of your finances and property. Unless you expressly restrict your attorney’s powers in the POA document, they will be able to do anything that you can do concerning your property, except make a Will.
A general POA can be limited by task, by type of property, and/or by time. For example, you may want to grant a POA for the specific purpose of selling your home. If you do not want everything you own to be managed by your appointed attorney, you could limit the property that is covered by your POA. A common example is to exclude all corporate assets from your POA. You can also specify whether the general POA starts from the moment it is executed or upon a specific date or event. To ensure that the POA is used as intended and without issue, any restrictions placed on the attorney’s powers should be clearly and unequivocally set out in the POA document.
It is important to note that a general POA allows your attorney to act on your behalf only while you are mentally capable of managing your own affairs. The general POA ends and cannot be used if and when you become mentally incapable.
2. Continuing Power of Attorney for Property
A continuing or enduring POA for property is essentially the same as a general POA for property with one key difference: the continuing POA for property allows your attorney to continue acting on your behalf even after you become mentally incapable of managing your own affairs. To ensure that the POA endures beyond your incapacity, the document must be a Continuing Power of Attorney for Property or expressly state that your attorney(s) may continue to act if you become mentally incapable.
In order to make a POA for property, you must be at least 18 years old and possess the requisite level of mental capacity as described in s. 8(1) of the Substitute Decisions Act.
3. Power of Attorney for Personal Care
A POA for personal care covers decisions relating to your personal health and well-being, such as medical treatment, diet, housing, clothing, hygiene, and safety. Similar to a POA for property, the attorney for personal care will have the authority to make almost every decision related to your personal care that you would normally make for yourself unless their powers are otherwise restricted in the POA document.
Unlike a POA for property, a POA for personal care may only be used when you are not mentally capable of making the personal care decision yourself. In other words, your attorney can only step in when there is a personal care decision that you are incapable of making for yourself. Depending on the specific decision at issue, either your attorney or a health professional must determine whether you are incapable of making the decision before your attorney can act on your behalf.
In order to make a POA for personal care, you must be at least 16 years old and possess the requisite level of mental capacity as described in s.47 of the Substitute Decisions Act.
The Office of the Public Guardian and Trustee provides POA document templates, which can be found here. However, it is best to obtain legal advice when creating a POA to ensure that it is drafted in a way that will allow your attorneys to manage your property and/or personal care as you intended.
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Pursuant to section 3 of the Substitute Decisions Act, 1992 (the “SDA”), if there is a proceeding under the SDA where a person’s capacity is in issue, but they do not have legal representation, the court may direct that the Public Guardian and Trustee (the “PGT”) arrange for legal representation for the person. The person will be deemed to have capacity to instruct counsel. This legal representation is often referred to as “section 3 counsel”.
We have previously blogged about the role of section 3 counsel (for instance, here and here). Section 3 counsel has been described as a safeguard that protects the dignity, privacy, and legal rights of a person who is alleged to be incapable.
Section 3 counsel plays a very important role in proceedings dealing with a person’s capacity, as they allow the person whose capacity, and possibly their rights and liberties, are at issue, to have a voice before the court.
In Singh v Tolton, 2021 ONSC 2528, there was a proceeding relating to the validity of powers of attorney executed by Rajinder Kaur Singh. The PGT proposed that the court consider appointing section 3 counsel for Rajinder. One of Rajinder’s children also requested that section 3 counsel be appointed. One of her other children, Anney, took the position that section 3 counsel was not necessary and raised a concern with the expense of appointing counsel, which cost would be borne by Rajinder.
The court concluded that this was an appropriate situation for the appointment of section 3 counsel. In coming to this conclusion, the court considered the purpose of the SDA, which is to protect the vulnerable. As noted by Justice Strathy, as he then was, in Abrams v Abrams,  O.J. No. 5207, proceedings under the SDA do not seek to balance the interests of the litigants, “but the interests of the person alleged to be incapable as against the interest and duty of the state to protect the vulnerable.” Section 3 is just one of the provisions of the SDA that demonstrate the care that must be taken to protect the dignity, privacy, and legal rights of the individual.
The court in Singh v Tolton also noted that the material before it disclosed a family at odds regarding Rajinder’s personal care. In a situation such as this, there may be a concern that the wishes or best interests of the person whose capacity is in issue will be lost amidst the fighting family members. Section 3 counsel can serve a crucial function in these types of circumstances, by sharing the person’s wishes and instructions with the court.
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You may also enjoy these other blog posts:
The Consolidated Practice Direction Concerning the Estates List in the Toronto Region was established for the hearing of certain proceedings involving estate, trust and capacity law, applying to matters on the Estates List in the Toronto Region.
As of March 9, 2021, Part VII (Contested Matters – Estates) of this practice direction was amended to make reference to model orders prepared by the Estate List Users’ Committee.
Generally, parties are expected to take the time and care to prepare proposed orders giving directions for consideration by the court. If the parties are unable to agree upon an order giving directions and a contested motion for directions is required, each party must file a copy of the draft order giving directions it is seeking with its motion materials.
In addition to providing requirements for what orders giving directions should address, where applicable, this practice direction now includes the following model orders:
- Order Giving Directions – Appointment of Section 3 Counsel
- Order Giving Directions – Power of Attorney/Guardianship Disputes
- Order Giving Directions – Will Challenge
- Order Giving Directions – Dependant’s Support
- Order Giving Directions – Passing of Accounts
As noted in the practice direction, the preparation of draft orders for consideration by the court will greatly expedite the issuance of orders. Where the relevant model orders have been approved by the Estate List Users’ Committee, a copy of the draft order showing all variations sought from the model order must be filed.
The addition of model orders can greatly benefit the Estates List in the Toronto Region. Among other things, these model orders provide a baseline for all parties, such that it can significantly reduce drafting time and potential disagreements on wording among parties, which in turn can increase efficiency and reduce costs.
Many thanks to the Estate List Users’ Committee for their time and efforts in preparing these model orders!
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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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The COVID-19 pandemic has thrown much of what we take for granted on its head. If recent reports are accurate we can potentially add to that list an individual’s right to control their own medical treatment as codified in the Health Care Consent Act (the “HCCA”).
There have been reports in the news recently about advanced planning currently underway about what would happen to the provision of health care if the worst case scenario for COVID-19 should occur and the hospitals are overwhelmed. Included amongst these reports are discussions that certain provisions of the HCCA may temporarily be suspended as part of a new triage system which would allow medical professionals to prioritize who received treatment.
Section 10 of the HCCA codifies that a health care practitioner shall not carry out any “treatment” for a patient unless the patient, or someone authorized on behalf of the patient, has consented to the treatment. The Supreme Court of Canada in Cuthbertson v. Rasouli, 2013 SCC 53, confirmed that “treatment” included the right not to be removed from life support without the patient’s consent even if health practitioners believed that keeping the patient on life support was not in the patient’s best interest. In coming to such a decision the Supreme Court of Canada notes:
“The patient’s autonomy interest — the right to decide what happens to one’s body and one’s life — has historically been viewed as trumping all other interests, including what physicians may think is in the patient’s best interests.”
The proposed changes to the HCCA would appear to be in direct contradiction to the spirit of this statement, allowing health care practitioners to potentially determine treatment without a patient’s consent based off of the triage criteria that may be developed. This “treatment” could potentially include whether to keep a patient on a lifesaving ventilator.
Hopefully the recent downward trend for COVID-19 cases holds and the discussion about any changes to the HCCA remains purely academic. If not however, and changes are made to the HCCA which could remove the requirement to obtain a patient’s consent before implementing “treatment”, you can be certain that litigation would follow. If this should occur it will be interesting to see how the court reconciles any changes to the HCCA with the historic jurisprudence, for as Rasouli notes beginning at paragraph 18 many of the rights that were codified in the HCCA previously existed under the common law, such that any changes to the HCCA alone may not necessarily take these rights away for a patient.
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Right from the start, 2021 is starting to look like it will be another extraordinary year of historic significance. In the world of estates, trusts, and capacity litigation, there was a decision released on January 5th where serious breaches of fiduciary duty by an attorney for property were found and the PGT was ordered to take over. The facts in Public Guardian and Trustee v. Cherneyko et al, 2021 ONSC 107, read like a law school case study and the reasons are worth noting.
Jean Cherneyko is a 90 year old woman. Jean did not have any children of her own. Her closest known relative was a niece in the US. By the time of the PGT application, Jean was in a long term care home. Prior to that, Jean lived alone in the same home that she had lived in since 1969. Jean had a friend named Tina who she had known for about five years. On August 15, 2019, Jean and Tina went to a lawyer’s office. Jean named Tina as her attorney for property and personal care. Jean also made a new Will which named Tina as the estate trustee and sole beneficiary of her estate. A week or so later on August 27th, Jean and Tina went to Jean’s bank where $250,000.00 was transferred to Tina, and $195,329.50 was transferred to Jean’s niece. Days later on August 31st, Jean was hospitalized for acute delirium and progressive cognitive decline. During Jean’s admission, Tina noted that Jean had become increasingly confused over the prior few months and that Jean exhibited lethargic behaviour and complained of bodily soreness. On September 1, 2019, Jean was diagnosed as being cognitively impaired. Thereafter, Jean was transferred to long term care on October 1st based on Tina’s authorization as Jean’s attorney for property. Short time after that, Tina’s son moved into Jean’s home and the PGT started to investigate in March, 2020 when the bank froze Jean’s accounts.
As a result of their investigation, the PGT brought an application to remove and replace Tina as Jean’s attorney for property. The PGT also sought to set aside the $250,000.00 transfer to Tina and the return of various other sums that were received by Tina, which totalled approximately $350,000.00.
First, the Court found that the transfer of $250,000.00 to Tina was not a gift. Tina failed to rebut the presumption of resulting trust for the gratuitous transfer. Tina put forth evidence that there was a bank manager who spoke to Jean at the time of the transfer, and that the banker told Jean that she would have still have enough money to live after the transfers to Tina and the her niece. This evidence was tendered through Tina’s affidavit without any direct evidence from the banker. The Court disregarded Tina’s reliance on the banker’s involvement because Tina herself had deposed that Jean was having “moments of delirium and irrationality, her condition fluctuated between lucidity and confusion” in late August, 2019 (para. 31) and there was no evidence that the banker was informed.
The Court also seriously questioned whether any of the payments to Tina were truly what “Jean wanted” because Jean’s power of attorney for property clearly stated that there was to be no compensation. The Court agreed with the PGT’s contention that Tina should not have paid herself $2,000.00 per month in compensation and on how that sum was unreasonably high given that Jean’s long term care costs were only $2,701.61 per month.
The value of the transfers, which was about a quarter of Jean’s net worth at the time, when considered in the context of Jean’s September 1st diagnosis also led the Court to find that Jean lacked capacity to gift Tina such a substantial sum.
The Court’s focus on context, timing, and proportionality as benchmarks in its analysis are very important for litigators and advisors to keep in mind.
Stayed tuned this week for Part 2 on Cherneyko: the breaches of fiduciary duty.
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In July, my colleague Paul Trudelle discussed the Virtual Signing of Wills, noting that in response to the COVID-19 pandemic, the Ontario government introduced an Order in Council specifically dealing with the execution of Wills and Powers of Attorney.
On December 10, 2020, pursuant to Ontario Regulation 458/20: Extensions of Orders under the Reopening Ontario (A Flexible Response to COVID-19) Act, virtual signing of Wills and Powers of Attorney have been extended until January 20, 2021 in Ontario.
Ontario Regulation 129/20: Signatures in Wills and Powers of Attorney among other things, provides the following:
1. The requirement for a testator or witness to be present in each other’s presence for the making of a Will (or Power of Attorney) may be satisfied by means of audio-visual communication technology, with certain restrictions.
2. “Audio-visual communication technology” means any electronic method of communication in which participants are able to see, hear and communicate with one another in real time.
3. At least one person who is providing services as a witness must be a licensee within the meaning of the Law Society Act at the time of the execution of the Will (or Power of Attorney).
4. The signatures or subscriptions may be made by signing or subscribing complete, identical copies of the Will (or Power of Attorney) in counterpart, which together shall constitute the Will (or Power of Attorney).
5. For this purpose, copies of a Will (or Power of Attorney) will be considered identical even if there are minor, non-substantive differences in format or layout between the copies.
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The highly anticipated COVID-19 vaccine is being rolled out in Ontario, with some of the first shots having already been administered yesterday. The University Health Network in Toronto and The Ottawa Hospital will be the first to administer the vaccine. Frontline healthcare workers in hospitals, long-term care homes, and other high-risk settings will be given priority. Vaccinations are expected to expand to residents in long-term care homes, home care patients with chronic conditions, and First Nation communities and urban Indigenous populations later in the winter of 2021. The province has not said when vaccines will become available for every Ontarian who wishes to be immunized. However, once available, the province confirms that vaccines will not be mandated but strongly encouraged.
The mass administration of the COVID-19 vaccine could be a real game changer in the battle against coronavirus. However, a recent public opinion poll conducted by Maru Blue shows that only one-third of Canadians would take the vaccine immediately, about half of Canadians would bide their time to assess its safety or use, and the rest have no intention of getting the shot at all. So it appears that Canadians are somewhat divided on the question of whether and when to get vaccinated.
Given the difference of opinion regarding this new vaccine, it is not inconceivable that multiple substitute-decision makers (SDMs) could disagree on whether to give or refuse consent to the shot on behalf of an incapable person. How would such a disagreement be resolved?
First, it is important to note that Ontario’s capacity legislation sets out a hierarchy of SDMs. Pursuant to section 20 of the Health Care Consent Act (HCCA), the guardian of the person is at the top of this hierarchy, followed by an attorney for personal care, representative appointed by the Consent and Capacity Board (CCB), spouse or partner, parent or children, siblings, any other relatives, and lastly the Public Guardian and Trustee (PGT). The decision of the highest ranking SDM will prevail over dissenting opinions from those who are lower on the hierarchy.
If there are multiple equally ranked SDMs acting with respect to a particular decision, they all have to be in agreement – the majority does not rule. If the SDMs fail to reach a consensus, any of the SDMs could apply to the CCB to try and be appointed the sole representative to make the decision. However, this option is not available where the incapable person already has a guardian of person or attorney for personal care. Another option is for the SDMs to attend mediation to try to come to an agreement. If mediation is not successful, the health practitioner must turn to the PGT for a decision. Section 20(6) of the HCCA states that the PGT is required to act and cannot decline to act in this situation.
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