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Jeffrey Shinehoft. The SDA handles two distinct capacity issues:  Capacity in connection to Property (finances); and  Capacity in connection to the.

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Presentation on theme: "Jeffrey Shinehoft. The SDA handles two distinct capacity issues:  Capacity in connection to Property (finances); and  Capacity in connection to the."— Presentation transcript:

1 Jeffrey Shinehoft

2 The SDA handles two distinct capacity issues:  Capacity in connection to Property (finances); and  Capacity in connection to the Person (health care). Jeffrey Shinehoft Shinehoft Law

3  The SDA only applies to individuals who are at least eighteen years old for Property and who are at least sixteen years old for the Person.  According to the Ontario Ministry of the Attorney General a person under the age of 18 years, parent is automatically deemed the child’s guardian of Person.  An incapable individual within the meaning of the Act will require a Litigation Guardian to both Defend and Initiate a legal Action. Jeffrey Shinehoft Shinehoft Law

4  The SDA legislates a presumption of capacity  A person who is eighteen years of age or more is presumed to be capable of entering into a contract.  A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care.  A person is presumed to be competent/capable and the standard of proof for a finding of incapacity is a balance of probabilities (more likely than not). Jeffrey Shinehoft Shinehoft Law

5  Section 6 of the SDA states the test for capacity to manage property as follows: ◦ “A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” Jeffrey Shinehoft Shinehoft Law

6  Section 45 of the SDA states the test for capacity of 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.” Jeffrey Shinehoft Shinehoft Law

7  Commencing December 1, 2005 O. Reg 460/5 legislated certain parameters for Capacity Assessments. In this regulation, there is reference at Section 3(1) to a Guideline for Conducting Assessments of Capacity, established by the Ministry of the Attorney General.  The Guideline can be found at the following web link: http://www.attorneygeneral.jus.gov.on.ca/englis h/family/pgt/capacity/2005-05/guide-0505.pdf http://www.attorneygeneral.jus.gov.on.ca/englis h/family/pgt/capacity/2005-05/guide-0505.pdf Jeffrey Shinehoft Shinehoft Law

8  The Guideline begins by making a critical distinction, which is at the heart of capacity matters. The distinction is between decisions that are “poorly informed, foolish, risky, or socially deviant (decisions that do not equate to incapacity) as oppose to decisions that are the product of an impaired decision-making process.  It is the decision making process NOT the decision itself that is essential to a finding of Incapacity.  The SDA sets out a two-part definition of mental capacity in that the person must have the ability to understand information relevant for making decisions, and in addition, show the ability to appreciate the consequences of a decision or a lack of a decision (emphasis added). Jeffrey Shinehoft Shinehoft Law

9  As a construct, to "understand" refers to a person's cognitive abilities to factually grasp and retain information. To the extent that a person must demonstrate understanding through communication, the ability to express oneself (verbally or through symbols or gestures) is also implied.  In this assessment protocol, at a minimum, a person must have a working knowledge of his or her financial, health or personal care status and be aware of any pressing issues that call for decision-making. He or she must also possess sufficient intellectual and cognitive ability to process and assimilate information about the available options for responding to the particular demands they face. Some individuals may have the ability to recite over learned facts pertaining to their personal or financial circumstances but lack the ability to follow an intellectual conversation or problem-solve around these rote facts. For example, a person with mild dementia may still know the name of his or her bank and know his or her approximate net worth, but be easily confused by a discussion around the various options to safeguard his or her estate against the effects of increasing forgetfulness. For this reason, the “Understand” part of the test has been further subdivided into "Factual Knowledge Base" and "Understanding of Options", each explored separately by the assessor in the capacity interview. Jeffrey Shinehoft Shinehoft Law

10  Factual knowledge base refers to the individual’s awareness of his or her personal and financial circumstances. For the personal care domain, this would entail probing the person’s knowledge of their living arrangements, safety and health care needs, including essential medications. For property assessments, the assessor will query the person’s understanding of assets, ongoing expenses and financial obligations. The assessor may also sample the person’s money management skills to the extent that such skills are essential to managing his or her affairs (e.g. does the person know the name of their bank, know how to establish a budget, can determine the market value of any property owned, etc.) When assessing an individual with factual knowledge deficits, the assessor must consider whether the person has been exposed to the necessary training or learning opportunities to acquire the relevant facts. For example, many elderly persons who delegated the responsibility for important financial decisions to their spouse may not be sufficiently informed as to the size and complexity of their estates upon the spouse’s death. In such a case, the assessor should ensure that the person has been fully informed about his or her material worth and obligations before reaching an opinion as to capacity.  Related but separate concerns arise when evaluating individuals with intellectual disabilities. In this population, essential knowledge and functional skills may not have developed because of a lack of direct instruction or life experience. Many of these individuals have not been raised in an environment where autonomous decision-making was encouraged or expected. Depending on the circumstances of each case, the assessor may be called upon to give an opinion as to whether or not the person could be taught the missing skills or knowledge, or should be placed in a less demanding environment to allow full or partial autonomy. However, some of these individuals may require substitute-deciders in the interim, and assessors may complete a Statement or Certificate of Incapacity with a recommendation that it be reviewed after intervention has taken place. Jeffrey Shinehoft Shinehoft Law

11  Faced with alternatives or choices, a person should be able to comprehend information about options and risks necessary to formulate an informed choice or plan of action. This requires the ability to attend to relevant stimuli, understand at a conceptual level and retain the essential information long enough to reach a decision. Furthermore, the person must be able to remember the choices he or she has previously made, and to express those choices in a predictable and consistent manner over time. By drawing the person into a discussion around their particular financial or personal care needs and the options that exist for meeting them, the assessor has the opportunity to witness the person’s full cognitive abilities in action. Oftentimes, this discussion will expose problems with short-term memory, a lowered threshold for confusion, or attentional deficits that have the potential to undermine decision-making. Jeffrey Shinehoft Shinehoft Law

12  The "appreciate" standard attempts to capture the evaluative nature of capable decision- making, and reflects the attachment of personal meaning to the facts of a given situation. Some individuals can understand and recite information in an academic fashion, but not see how the facts apply to their particular situation. For example, a person with a severe psychiatric illness may be able to demonstrate his or her understanding of the symptoms diagnostic of the illness and the appropriateness of treatment if one is ill, but at the same time, not recognize that he or she is currently exhibiting signs of active illness. The “appreciate” part of the test requires that individuals not only possess the intellectual and cognitive capability to factually understand information, they must also be able to rationally manipulate this information and appraise it in a reality-grounded fashion. Thus, the “appreciate” standard focuses on the reasoning process behind the individual's decisions, and in addition, explores the particular personal weights that the person attaches to one outcome or another. However, choice also reflects value considerations, therefore assessors must broaden their inquiry to include them. Foolishness, riskiness or social deviance may be grounds to examine “appreciation” more closely, but do not substitute for incapacity. The assessor is not judging whether or not the person’s decisions or actions appear reasonable, but whether they are reasoned.  For the purposes of capacity assessments under the SDA, the “appreciate” standard is divided into two distinct dimensions: "Realistic Appraisal of Outcome" and "Justification of Choice". Both dimensions are to be explored separately by assessors, in recognition that impairment in “appreciation” can arise in different ways. Jeffrey Shinehoft Shinehoft Law

13  In a general sense, a capable person is one who is able to appraise the likely outcomes that mismanagement will pose to his or her financial or personal well-being. The person must be able to identify the major risks and show that he or she has considered the consequences of choosing to manage or ignore risk. This depends on adequate insight, a clinical term that is used to refer to the degree to which an individual can realistically evaluate his or her current situation. For the purposes of evaluating insight under the SDA, the person should at least acknowledge to the assessor any personal limitations or deficiencies that prevent him or her from meeting important situational demands. However, insight goes beyond simple awareness of one’s cognitive deficits or psychiatric impairment. The person must also take into account any personal deficiencies when evaluating the riskiness of a particular decision or course of action. Some persons can formulate a plan to carry out a decision, but lack the initiative to carry out the various steps of the plan. Or, he or she may lack the impulse control to adhere to the plan. Failure to anticipate how they may sabotage their own plans leads them to overestimate the likelihood of success. This is a common area of difficulty for persons with neurological trauma or disease affecting the frontal lobes of the brain, where the ability to self-regulate behaviour can be impaired regardless of stated intentions. When assessing individuals with executive impairment, the assessor needs to place appropriate emphasis on the person’s behaviour and any recent change in management practices, to the extent that this attests to the ability to plan, implement and abide by decisions. However, the assessor must be careful not to equate lack of insight with refusal of assistance or unfortunate outcome. Competent individuals can freely mismanage their financial affairs or refuse assistance provided they are fully cognizant of the consequences of their actions.  Adequate appreciation of outcomes also requires the assignment of personal meaning or significance. The significance a person assigns to certain outcomes may be skewed by factors that cause a distorted interpretation of one's circumstances. This may result in incapacity. An example is that of a severely depressed person with symptomatic feelings of entrenched helplessness and hopelessness, who no longer factors in personal needs and survival issues in decision-making. Jeffrey Shinehoft Shinehoft Law

14  In addition to realistically appraising outcomes, a capable individual is one who can show evidence of the rational manipulation of information, where choice is free from delusional beliefs and logically flows from the premises. Here, the focus is on the reasoning process. The assessor must be clear that the emphasis is not on the status of the decision as a "reasonable" one as appraised by others. Rather, the issue is whether it is a "reasoned" one and based on reality. To determine this, the assessor will probe the chain of reasoning to examine it for logical consistency and to determine whether the particular choice is predicated on false or irrelevant beliefs or experiences.  In a select number of cases, the assessor may have to judge whether the particular belief influencing choice is truly delusional or whether it is just idiosyncratic or eccentric. Here, assessors should be guided by the following considerations: ◦ The particular belief in question must be influencing decision-making in the domain under investigation in some relevant way. For example, a delusional belief about one's food does not necessarily influence the decisions a person makes about managing property. ◦ The assessor can accept the belief as delusional if it can be disputed by objective evidence to the contrary (i.e. it is at odds with reality as we know it). ◦ The assessor's confidence that a particular belief is delusional is increased if it is just one symptom or manifestation of a recognizable psychiatric or neuropsychiatric disorder. Active delusions are often associated with other signs of thought and affective or personality disorders, whereas eccentricities are not.  The assessor can review both verbal and behavioural evidence of reasoned decision-making choice. When the assessor encounters idiosyncratic or seemingly irrational choices, the test is whether the person can show that he or she thought through the issues and related this information to a personal belief system.2 If primarily behavioural evidence is being relied upon, the behaviour must be consistent with the person’s previous actions, expressed wishes and demonstrated values. Jeffrey Shinehoft Shinehoft Law

15  The Supreme Court of Canada in Starson v. Swayze, [2003] 1. S.C.R. 722 is instructive regarding the issue of capacity.

16  The first concept emphasized by the SCC is the notion that an individual has a right to be “foolish” and that a test of capacity is not a determination of what is the Assessed best interest.  The SCC states as follows at paragraph 76: ◦ The Board's (evaluation of capacity) conception of the patient's best interests is irrelevant to that determination. As the reviewing judge observed, "[a] competent patient has the absolute entitlement to make decisions that any reasonable person would deem foolish" (para. 13). This point was aptly stated by Quinn J. in Koch (Re) (1997), 33 O.R. (3d) 485 (Gen. Div.), at p. 521:  The right knowingly to be foolish is not unimportant; the right to voluntarily assume risks is to be respected. The State has no business meddling with either. The dignity of the individual is at stake. Jeffrey Shinehoft Shinehoft Law

17  The SCC notes that “if the patient's condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.”  Further the SCC makes an important distinction in connection to appreciation of the reasonable risks; specifically, a person must have the ability to appreciate the risks, but does not require an actual appreciation of those risks.  The SCC articulates the significance of this distinction as follows at paragraph 81: ◦ “However, a patient's failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient's lack of appreciation may derive from causes that do not undermine his ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician's failure to adequately inform the patient of the decision's consequences…Accordingly, it is imperative that the Board inquire into the reasons for the patient's failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient's mental disorder prevents him [page763] from having the ability to appreciate the foreseeable consequences of the decision.” Jeffrey Shinehoft Shinehoft Law

18 1.Continuing Power of Attorney; 2.Statutory Guardians of the Person; 3. Court Appointed Guardian; and 4. Court Appointed Temporary Guardian. Jeffrey Shinehoft Shinehoft Law

19  A valid Continuing Power of Attorney may authorize the person named as Attorney to do on the grantor’s behalf anything that the grantor could do if capable, except make a will. Jeffrey Shinehoft Shinehoft Law

20  The SDA prohibits the following individuals from acting as an Attorney for personal care, unless the person is the grantor’s spouse, partner or relative:  A person who provides health care to the grantor for compensation provides residential, social, training or support services for the grantor for compensation. Jeffrey Shinehoft Shinehoft Law

21  Document that states that it is a continuing power of attorney; or  it expresses the intention that the authority given may be exercised during the grantor’s incapacity to manage property.  NOTE - the continuing power of attorney need not be in any particular form. Jeffrey Shinehoft Shinehoft Law

22  Knows what kind of property he or she has and its approximate value;  Is aware of obligations owed to his or her dependants;  Knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;  Knows that the attorney must account for his or her dealings with the person’s property;  Knows that he or she may, if capable, revoke the continuing power of attorney;  Appreciates that unless the attorney manages the property prudently its value may decline; and  Appreciates the possibility that the attorney could misuse the authority given to him or her. Jeffrey Shinehoft Shinehoft Law

23  Has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and  Appreciates that the person may need to have the proposed attorney make decisions for the person. Jeffrey Shinehoft Shinehoft Law

24  Granting a Power of Attorney requires a lesser level of capacity than required to make one’s own decisions. The Court need not be satisfied that the person has a sophisticated understanding of her financial situation. Jeffrey Shinehoft Shinehoft Law

25  An improperly executed power of Attorney is not effective, and a Court Order is required to make it effective.  The Power of Attorney shall be executed in the presence of two witnesses, each of whom shall sign the power of attorney as witness. Jeffrey Shinehoft Shinehoft Law

26 ◦ The attorney or the attorney’s spouse or partner. ◦ The grantor’s spouse or partner. ◦ A child of the grantor or a person whom the grantor has demonstrated a settled intention to treat as his or her child. ◦ A person whose property is under guardianship or who has a guardian of the person. ◦ A person who is less than eighteen years old. Jeffrey Shinehoft Shinehoft Law

27  When the attorney dies, becomes incapable of managing property and/or incapable of personal care, resigns, unless, ◦ another attorney is authorized to act under subsection 7 (5) and/or 46(5) (death of a co-power of attorney), or ◦ the power of attorney provides for the substitution of another person and that person is able and willing to act;  When the court appoints a guardian for the grantor under section 22 and/or section 55;  When the grantor executes a new continuing power of attorney, unless the grantor provides that there shall be multiple continuing powers of attorney;  When the power of attorney is revoked; or  When the grantor dies. Jeffrey Shinehoft Shinehoft Law

28  A Power of Attorney need not be in any particular form to be valid;  A Power of Attorney must be executed in the form mandated by the SDA to be valid without a court order;  The specific Power of Attorney should be reviewed to determine when and how it applied; and  A lesser degree of Capacity is required, compared of that required to manage own Property or Person, to grant or revoke a Power of Attorney. Jeffrey Shinehoft Shinehoft Law

29  The Public Guardian and Trustee will be a person’s guardian of property where a certificate is issued under the Mental Health Act certifying that a person who is a patient of a psychiatric facility is incapable of managing property.  The SDA adopts the definition of a psychiatric facility, from the MHA, as a “facility for the observation, care and treatment of persons suffering from mental disorder, and designated as such by the Minister”.  Section 16 of the SDA provides a mechanism for a person to request an assessment for themselves, or another individual (who is a patient of a psychiatric facility).  Section 17 of the SDA articulates a mechanism of replacing the Public Guardian by making an application to the Public Guardian. Jeffrey Shinehoft Shinehoft Law

30  An Order appointing a Guardian must include a finding of incapacity in the area of appointment i.e. Property and/or the Person.  The SDA indicates that where a person’s capacity is in issue, and the court is satisfied on reasonable grounds that the person is incapable, the court may, order the person be assessed.  An individual who provides health care or residential, social, training or support services for compensation shall not be appointed as a Guardian unless they are already the Power of Attorney or in the context of the Person, there is no other suitable person who is available and willing to be appointed. Jeffrey Shinehoft Shinehoft Law

31  A Guardian of Property (including Statutory Guardian) can do on the incapable person’s behalf anything in respect of property that the person could do if capable, except make a will. Jeffrey Shinehoft Shinehoft Law

32  Exercise custodial power over the person under guardianship, determine his or her living arrangements and provide for his or her shelter and safety;  Be the person’s litigation guardian, except in respect of litigation that relates to the person’s property or to the guardian’s status or powers;  Settle claims and commence and settle proceedings on the person’s behalf, except claims and proceedings that relate to the person’s property or to the guardian’s status or powers;  Have access to personal information, including health information and records, to which the person would be entitled to have access if capable, and consent to the release of that information to another person, except for the purposes of litigation that relates to the person’s property or to the guardian’s status or powers;  On behalf of the person, make any decision to which the Health Care Consent Act, 1996 applies;  Make decisions about the person’s health care, nutrition and hygiene;  Make decisions about the person’s employment, education, training, clothing and recreation and about any social services provided to the person; and  Exercise the other powers and performs the other duties that are specified in the order. Jeffrey Shinehoft Shinehoft Law

33  Whether the proposed guardian is the attorney under a continuing power of attorney;  The incapable person’s current wishes, if they can be ascertained; and  The closeness of the applicant’s relationship to the incapable person.  According to section 48(2) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, the parent has preferential entitlement to be appointed by a court as the guardian of property of the child as between the parent and an applicant who is not the child’s parent.  If there is a Guardian of Property appointed under the Children’s Law Reform Act, a separate and new Application for guardianship will likely need to be made under the SDA after the child reaches 18 years of age. Jeffrey Shinehoft Shinehoft Law

34  The central factor is what is in the Person’s best interest;  The Court is extremely reluctant to appoint and individual other than the individual named in a validly executed continuing power of attorney, as this is an expression of the Person’s intention when having capacity;  The onus is on the moving party to establish incapacity on a balance of probabilities;  The question of Capacity is to be decided upon the medical evidence.  While closeness of the relationship is a relevant factor in determining the “proper” Guardian, blood relationship is not determinative and there is no priority rules based on blood relationships. Jeffrey Shinehoft Shinehoft Law

35  A very powerful tool is provided by the section 27 and section 62 of the SDA in the form of a mechanism for the appointment of a Temporary guardian. This can be a cost and time effective way of handling a situation involving an individual who needs a substitute decision maker and/or an individual who is being abused by their purported Power of Attorney.  The SDA mandates that the Public Guardian and Trustee shall investigate any allegation that a person is incapable of managing property and/or personal care and that serious adverse effects are occurring or may occur as a result. Jeffrey Shinehoft Shinehoft Law

36 Property: ◦ Loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for dependants…” Person: ◦ “Serious illness or injury, or deprivation of liberty or personal security, are serious adverse effects for the purposes of this section”. Jeffrey Shinehoft Shinehoft Law

37  A guardian of Property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.  A guardian shall, in accordance with the regulations, keep accounts of all transactions involving the property  Powers and duties of a guardian of the Person shall be exercised and performed diligently and in good faith.  Guardians can be liable for damages resulting from breach of their Duties.  The SDA articulates a number of factors that should be taken into Account when making decisions on behalf of the incapable person. These factors have not been summarized in this paper (see sections 32 and 66 of the SDA). Jeffrey Shinehoft Shinehoft Law


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