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2010, Community Law School (Sarnia-Lambton) Inc.

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CLEONet is a web site of legal information for community workers and advocates

who work with low-income and disadvantaged communities in Ontario.

About our presenter…Judith Wahl has been the Executive Director and Senior Lawyer at the Advocacy Centre for the Elderly (ACE) since 1984. ACE is a community legal service for low income seniors that focuses on legal issues that have a greater impact on the older population.Judith has organized and taught numerous public legal education programmes on legal issues that arise in day to day work with seniors, including Advance Care Planning - Physicians’ Training Ontario College of Family Physicians and Alzheimer Society of Ontario; Gerontology Programme at McMaster University, Faculty of Social Sciences; the Diversity Training Course at C.O. Bick Police College; as well as Continuing Legal Education Programmes for the Law Society of Upper Canada, Ontario Bar Association, the former Canadian Bar Association – Ontario, and the Canadian Bar Association National.

Advocacy Centre for the Elderly3

Powers of Attorney and other Substitute Decision Making Authorities

Judith WahlAdvocacy Centre for the [email protected]


Advocacy Centre for The Elderly 2 Carlton Street, Suite 701

Toronto, OntarioM5B 1J3

Tel - 416-598-2656 Fax - 416-598-7924 Email [email protected] Website www.acelaw.ca


Two Webinars

Part 1 - Mental Capacity and Decision Making - The ABCs of Substitute Decision Making

Part 2 - Powers of Attorney and other Substitute Decision Making Authorities


Part I of 2 Mental Capacity and Substitute Decision Making

Decision-making When someone else gets authority to make

decisions for you How mental capacity is defined in law How mental capacity for decision making is

assessed Who assesses mental capacity for different

purposes Who are your substitute decision makers for

different purposes


Today’s Webinar - Part 2 of 2Powers of Attorney and other Substitute Decision Making Authorities What is a Power of attorney Different types of POAs Why you may want to prepare a POA How you can prepare a POA When a POA comes into effect and why What happens if you haven’t prepared a POA The authority of the attorney named in a POA. Other substitute decision making authorities

Statutory guardianships Court ordered guardianships Substitute decision maker for health care when you

have not prepared a POA for Personal care


Questions during Webinar

Please write your questions in the chat box during the presentation

We will also have a SHORT break for questions twice during the presentation after the explanation of the POA Property

and Substitute Decision Makers for Property AND

after the explanation the Substitute Decisions Makers for Personal Care

We will also take questions at the end


Legislation

Substitute Decisions Act (SDA) Health Care Consent Act

(HCCA) Mental Health Act (MHA)

See “Laws” on the Ontario Government website at www.gov.on.ca


What Decisions do you make in your Life?

Decisions about Property – money, real estate, personal goods, furniture, things of value to the person, bank accounts

Decisions about Personal Care – Shelter, nutrition, hygiene, safety, clothing and health care


Who Decides?

You decide for yourself if MENTALLY CAPABLE

Your Substitute Decision Maker (SDM) if you are NOT mentally

capable


What does it mean to be Mentally Capable?

To be Mentally Capable means that you have the ability to understand information relevant to making the decision and the ability to appreciate the consequences of making a decision or not making a decision


Who is your SDM for Property if you are not mentally capable for property decisions? Summary**** Someone you, when you are still

mentally capable, choose as an “attorney” in a POA Property

When you become incapableA Statutory Guardian for PropertyA Court Ordered Guardian of PropertyA Trustee appointed under the OAS or

CPP legislation


Powers of Attorney for Property

Your attorney named in a POA Propertyif you made a POA Property

You can choose the person you want to act for you by signing a POA Property

You must be mentally Capable POA Property is a DOCUMENT, in Writing,

in which you name an SDM (called an “attorney”), you sign, and two witnesses sign all in the presence of each other


Powers of Attorney for Property For a POA Property to be valid

You must be mentally capable when you sign it

You must be signing it voluntarily

POA Property is a DOCUMENT, in Writing, in which you name an SDM (called an “attorney”), you sign, and two witnesses sign all in the presence of each other


How do you get a POA Property done?

How do you get a POA Property done?- use Ontario Public Guardian and Trustee Kit- go to a free legal clinic (some do these documents)- go to a lawyer


IMPORTANT things to remember before signing a POA for Property

Think about whether you need one or not – POAs for property are NOT the best things for everyone

You should ONLY name someone as attorney if you have someone that you TRUST and think that you will be able to trust in the future

If you don’t have someone you can trust – DON’T SIGN A POA PROPERTY


IMPORTANT things to remember before signing a POA for Property

The person who you name as attorney in a POA will have the ability to “sign your name” – so think about what that means.

● You can sell your house by signing your name.. You can enter into contracts by signing your name.. You can have a mortgage put on your house by signing your name… you can access your bank accounts by signing your name..

o Should you name more than one person as your attorney? Should they act together (jointly) or jointly and severally (separately) ?


When POA Property in Effect

Comes into effect ON SIGNATURE when you are still mentally capable

If you write into the POA Property that you only want it to be in effect AFTER you become incapable, then your attorney (SDM) can use POA Property ONLY after you become incapable


Who is your SDM for Property if you are not mentally capable for property and don’t have a POA Property – Statutory Guardianship

If you don’t have a POA property and you are likely mentally incapable to manage property, someone can arrange for you to be assessed by a “Capacity Assessor” and if found incapable for property , the OPGT will take over your money management for you and act as your SDM for property. This is called a Statutory Guardianship


Application to replace the OPGT as your Statutory Guardian Your spouse or partner, your relatives,

or a trust company (with consent of your spouse or partner) may apply to replace the OPGT as your statutory guardian and take over management of your property


Capacity Assessors

Capacity assessors are fee for service- whoever asks for the assessment, pays for the assessment

You can get information about who are capacity assessors and how to find them by contacting the Capacity Assessment Office located in the same Office of the Public Guardian and Trustee


Definition of Capacity Assessor SDA s. 1(1)

“assessor” means a member of a class of persons who are designated by the regulations as being qualified to do assessments of capacity.


Capacity Assessors O.Reg.460/05 S.2 (1) A person is qualified to do

assessments if he or she,a) satisfies one of the conditions set out in ss.(2) (Member of particular College) ;b) has successfully completed the Qualifying course described in s.4c) complies with s.5 (continuing education)d) complies with s.6 (minimum annual number of assessments) e) is covered by professional liability insurance of not less than $1,000,000...


Capacity Assessors O.Reg.460/05 S.2 (2)

is a member of one of the following Colleges.a) College of Physicians & Surgeons of Ontario.b) College of Psychologists of Ontario.c) Ontario College of Social Workers & Social

Service Workers and holds a certificate of registration for social work.

d) College of Occupational Therapists of Ontario.e) College of Nurses of Ontario.


Who is your SDM for Property if you are not mentally capable and don’t have a POA Property and are an inpatient in a psychiatric facility?

If you are admitted as an inpatient to a hospital for psychiatric treatment, a physician must assess you as to whether you are mentally capable to manage property

If you are found incapable, the OPGT will step in as your SDM for property (called a Statutory Guardianship)


Statutory Guardianship

This statutory guardianship may continue after you are discharged from a psychiatric facility and move back home or move into another accommodation like a hospital or long term care home

Before you are discharged from the psychiatric facility, a physician must either find you mentally capable to manage your own property or sign a notice of continuance to permit the statutory guardianship to continue to be in effect


Who is your SDM for Property if you are not mentally capable and don’t have a POA Property – Court Ordered Guardian

Someone, usually a close relative, can apply to court to be named your Guardian of Property– but other people also could apply to become your court ordered Guardian


Who is your SDM for Property if you are not mentally capable and don’t have a POA Property - Trusteeship

If you have income only from Canada Pension and Old Age Security, and you become incapable for property and have no POA property, someone can apply to become your TRUSTEE to manage your money for you

Application forms for this are available from Service Canada (Income Security Branch) – These are a certificate of Incapability and an Undertaking


Questions?

Any questions about Powers of Attorney for Property or other Substitute Decision Makers for Property?


Who is your SDM if you become incapable for Personal Care? ****Summary Someone you choose in a POA

Personal Care A Court Ordered Guardian of the

Person For health decisions – the person or

persons highest ranking in the hierarchy of SDMs in the Health Care Consent Act


Who is your SDM if you become incapable for Personal Care?

You can prepare a POA Personal Care to choose someone to act for you

POA Personal Care – is a document, in writing, in which you name someone (or more than one person) to be your attorney for personal care. You can also write in that document your wishes about health care and treatment. That document must be signed by you and two witnesses in the presence of each other.


How do you get a POA Personal Care done?

How do you get a POA Personal Care done?- use OPGT Kit- go to a free legal clinic ( some do these documents)- go to a lawyer


Important things to think about before signing a POA for Personal Care

Do you need a POA Personal Care? Why? Do you have someone that you can trust to

name as attorney- remember that this persons will be able to make decisions about where you LIVE, what HEALTH CARE you will get or won’t get, what food you eat and clothes you wear and how your hygiene is maintained and what risks you can take…


When POA Personal Care Comes into Effect

A POA Personal Care is different than a POA Property as to when it comes into effect

A POA Personal Care ONLY comes into effect and gives authority to your SDM to make decisions for you when you are not mentally capable for personal care decisions


Who is your SDM if you are not mentally capable to make Health Decisions?

You ALWAYS have an SDM for Health Care even if you have not done a POA Personal Care

Your SDM is the person HIGHEST on the list of SDMs in the Health Care Consent Act


List of SDMs for Health Care

1. Court Ordered Guardian of the Person2. Attorney in a Power of Attorney for

Personal care3. Representative ( person appointed by the

Consent and Capacity Board)4. Your spouse or partner5. Your Child or parent6. Your Brothers or sisters7. Any of your other relatives8. The Public Guardian and Trustee

Advocacy Centre for the Elderly38 38

Requirements for Person to Requirements for Person to be an SDMbe an SDM

Person highest in hierarchy may give or refuse consent only if he or she:a) is capable in respect to the treatmentb) is at least 16 years old unless the parent of the incapable personc) is not prohibited by a court order or separation

agreement from acting as SDMd) is availablee) is willing to act as SDM


List of SDMs for Health Care

If you have more than one person in the same category that is available to act for you as SDM, then all of them must act together and agree or they may pick one of the group to act for you – so if you have three children all three may act for you or they must choose which one will act for you – THEY must agree in some way as to what the decision is for you and how many of them are “active” in the decision making. Health providers cannot pick which of them that may act for you


Definition of Spouse

Two persons (same sex or opposite sex) who are (a) married to each other; or(b) living common law and, i) have cohabited for at least one year, orii) are together the parents of a child, oriii) have together entered into a cohabitation agreement under s. 53 of the Family Law Act.

Not spouses if living separate and apart as a result of a breakdown of their relationship.


Definitions

PARTNERTwo persons who have lived for at least one year and have a close personal relationship that is of primary importance in both person’s lives

RELATIVEPeople are relatives if related by blood, marriage or adoption


What's the difference between a POA Personal Care and an “Advance Directive’?

The Ontario legislation ONLY refers to POAs for personal care and to the ability of people to express “wishes” about future health care

There is no reference to advance directives or living wills

You cannot validly appoint someone as your decision maker in an advance directive – You can only do that in a valid POA Personal Care


Questions?

Any questions about POA personal Care or other Substitute Decision Makers for Personal Care or Health Care?


What are the Duties of an Attorney for Property and Guardian for Property?


Fiduciary duty

A “fiduciary duty” - To act with honesty and integrity and in good faith, for the benefit of the Donor.

If an Attorney’s decision will have an effect on the incapable person’s personal comfort or well-being, the Attorney shall consider that effect in determining whether the decision is for the incapable person’s benefit


Participation

An Attorney for Property and an Attorney for Personal care shall both encourage the incapable person to participate, to the best of his or her abilities, in the guardian’s decisions about the property and personal care


Family and Friends

An Attorney for Property and an Attorney for Personal Care shall both seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person.

Neither type of attorney has the authority to block access by other relatives to a resident in a LTC home unless its an issue of safety


Consultation

An Attorney for Property and the Attorney for Personal Care shall both consult from time to time with:

supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and

the persons from whom the incapable person receives personal care.


Accounts

An Attorney for Property shall, in accordance with the regulations, keep accounts of all transactions involving the property.


Duty to Account and Records of an Attorney for Personal Care The attorney for personal care has a duty to keep records The records should include

A list of each personal care decision, the reason for it and the date, and . . .

A copy of medical reports for any decision Names of any persons consulted a description of the

incapable person's wishes, if any, relevant to each decision, that he or she expressed when capable and the manner in which they were expressed;

A description of the person's wishes The attorney's or guardian's opinion on each of the

factors that the attorney is required by law to take into account


Delivery of Accounts

An attorney under a continuing power of attorney shall give a copy of the accounts and records he or she keeps to any of the following persons who requests it:

• The incapable person.• The incapable person's attorney for

personal care or guardian of the person.


Required Expenditures

An Attorney for Property shall make the following expenses from the incapable person’s property . . . Expenses that are reasonably necessary for

the person’s support, education and care . . . Expenses that are reasonably necessary for

the support, education and care of the person’s dependants . . .

Expenses that are necessary to satisfy the person’s other legal obligations.


Duties of Guardian of the Person and Attorney in POAPC To explain to the incapable person

what their duties and powers are To make decisions under HCCA

In accordance with wishes expressed by person when capable that are applicable to the circumstances

Later wishes prevail over earlierIf no wishes then best interests


Other Duties

Not restrain/confine unless essential to prevent serious bodily harm or to allow the person greater freedom or enjoyment


Summary****

Capable people make their own decisions While capable, a person may prepare

POAS to appoint someone to be their future SDM

If incapable, everyone automatically has an SDM for health care even if they didn’t do a POA because of the HCCA

If person incapable, someone else would have to DO something to become the SDM for property of that person if that person had not done a POA property while capable


Questions?

Any questions about any part of this webinar?

2010, Community Law School (Sarnia-Lambton) Inc.

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