1. Capacity Assessment Process Under the Personal Directives Act
Professional training
Office of the Public Guardian
Introduction Presented by OPG
The enhanced Personal Directives Act was proclaimed on June 30 , 2008.
As more Albertans write personal directives, physicians who provide direct health care services and, health care practitioners in allied health care services such as Psychologists, nurses, occupational therapists and social workers, are increasingly required to be knowledgeable about this legislation.
One of the changes in the Regulations to the Act has to do with completing capacity assessment forms. While physicians and psychologists may continue to assess mental capacity in a manner consistent with their profession, the process of completing the declaration of incapacity has been streamlined. As well, the Act now allows for a reassessment process of the maker, which can be requested by the agent, service provider or a maker he maker.
The Office of the Public Guardian is hosting 29 training sessions throughout Alberta from September 9th to November 8th to increase the knowledge of all health care practitioners about the new capacity assessment process that is now legally in place .
Facilitator who are each experts in capacity assessment will explain factors to consider when completing various assessment Schedules.
The 3 facilitators are: Dr David Hogan : Geriatric Specialist - Calgary
Capacity training sessions: Calgary, Lethbridge and Red Deer
Dr. Jasneet Parmar: Geriatric specialist – Edmonton
Capacity training sessions: Edmonton, Fort McMurray, Grande prairie and Bonnyville.
Dr. Arlin Pachet: Psychologist - Calgary.
Capacity training sessions: Medicine Hat, Calgary, Red Deer, Edmonton, Peace River and Lloydminster.
Before delving into capacity assessment/reassessment processes a brief overview of the changes in the Personal Directives Act will be provided.

2. OBJECTIVES:
Understand the new capacity assessment provisions in the PDA
Learn about your role as a Health care service provider
Integrate ‘best practices’ when declaring on a maker’s capacity

3. A personal directive is…
A legal planning tool to help ensure personal wishes are followed when unable to make decisions because of illness or injury
It is estimated that 100,000 Albertans currently have a personal directive
Slide presented by OPG
Personal directives allow Albertans to provide instructions to be followed when they are unable to make decisions for themselves.
Personal directives help others to know what the maker would like or dislike concerning their care and all matters concerning their life. Personal directives however do not include financial matters.
Instructions in a personal directives are legally binding to everyone.
Therefore, when writing a personal directive it is important for the maker to plan carefully and to discuss their instructions first with people who care about them.
Health care instructions are also best discussed with health care providers before inclusion in the personal directive.
Some health regions have developed a guide for their patients to prepare them for such discussions with family and health care professionals – e.g., “My Voice” in the Calgary health region.

4. Who is involved?
The Maker: the person who writes and signs the directive
The Agent: the person(s) named to make personal decisions – legal representative
Service Providers: professionals who need to refer to the personal directive before providing services (after the maker has lost capacity)
Slide presented by OPG
Agents: can live outside of Alberta, and must have mental capacity. Agents can resign at any time when they are appointed, even when the maker has lost capacity.
There is a benefit in having more than one agent.
Agents are only legally authorized to make decisions for the duration of the incapacity of the maker. A Capacity Schedule will indicate which in areas the maker has lost capacity.
The Act defines a service provider as “ a person who carries on a business or profession that provides or who is employed to provide a personal service to an individual and when providing a service requires a personal decision from the individual before providing a service.”
Professionals like to know that the person who is speaking on behalf of an incapacitated adult is legally authorized to make decisions: a personal directive grants that authority to the agent.

5. Overview of PDA changes since June 30 2008
Directives made outside of Alberta are valid when they comply with the requirements of the Personal Directives Act
Makers may indicate who they want to temporarily care for and educate their minor children
Slide presented by OPG
A directive written in another province, territory or country is acceptable if it meets the requirements of the Personal Directives Act of Alberta.
The legal requirements are:
Maker is +18yrs,
has mental capacity to write a legal document,
the directive is completed voluntarily,
is written (no verbal appointment of agents),
dated,
signed at the end in the presence of one witness - who is not a spouse, agent or the spouse of the agent.
Note: There are may different instructional documents in North America such as: “living wills, advance directives, enduring power of attorney for personal care…”, just to name a few. These documents can be considered a personal directive when they meet the requirements of the Personal Directives Act of Alberta.
During PDA consultations leading up to the new Act, parents with under age children indicated their wish to be able to plan for the care and education of their children in the event they loose capacity.
This is now possible: a maker may name a temporary agent to a child, until Family Court makes a decision on long term guardianship (if needed).

6. Overview of PDA changes since June 30 2008
Standard personal directives form - voluntary use
“Schedule 1” can be obtained from:
the Office of the Public Guardian on-line
Or, by calling toll free at:
Slide presented by OPG
Personal directives written prior to June are still valid, there is no need to rewrite a personal directive when one was already completed.
It should be noted there is no mandatory form or format for a personal directive, a maker can prepare their personal directive in the format of their choice.
Consultation with a lawyer is optional, in some situations it is a good idea to seek legal advice, for instance when there is family conflict.
The standard personal directives form (Schedule 1 in the Regulations) may be used OR, the form can be used as a guide. As a guide, the form may assist the maker when thinking about what to include in their personal directive.
Note: It is important to put the title “Personal Directive” on the document for easy recognition by service providers.

7. Overview of PDA changes since June 30 2008
The Public Guardian:
May be designated as sole agent
Can investigate complaints made against agents
Schedule 7
Slide presented by OPG
PG designation as agent:
PG will check that the appointment is made as a last resort (there is no one else who is willing, able to act as agent), and the Public Guardian is required to provide consent to act as agent, in writing to the maker if the designation is accepted.
Before the Public Guardian would consent, the maker provides a copy of the signed directive.
The Public Guardian will not act as the temporary agent to a minor child. If the Public Guardian agrees to be named agent, the maker is advised that any subsequent updates to the directive must be consented to by the Public Guardian.
PG investigation of agent (s):
Complaint must be received by OPG in writing (Schedule 7 is used) and the personal directive must be in effect for a complaint to be considered.
The Office of the Public Guardian will determine if the directive is in effect by reviewing Schedule 2 or 3 or, Form 1 or 2 if the declaration on the maker was made prior to June 30, 2008.
The Act defines reasons for investigation:
There is reason to believe an agent is failing to comply with:
the personal directive
the duties of an agent
and failure is likely to cause harm to the maker
Note:
Schedule 7 is available from OPG website: or can be mailed out.

8. Overview of PDA changes since June 30 2008
Voluntary “On Line” Registry
for personal directives
seniors.alberta.ca/opg/registry/
Slide presented by OPG
Registration of a personal directive:
Voluntary & free
Registry is administered by the Office of the Public Guardian
Registration can be completed on-line, fax or mail.
Only authorized users (health care providers) can access information.
1st in Canada where the maker and agents have full control of their information (input, update, delete).

9. Overview of PDA changes since June 30 2008
Standardized Declaration of Incapacity new schedules: 2 and 3
Establishing a new process for determining if an adult has regained the ability to make personal decisions
new schedules: 4, 5 and 6
Slide presented by OPG
Since June 30th 2008 only the new capacity schedules may be used.
Because the Schedules are in the regulations to the Act, they must be used; verbatim if copied.
Capacity assessments completed on Form 1 or 2 after June 30, are not valid!
There are 5 Schedules in the Regulations to the PDA relating to capacity assessment.
All the schedules can be found on the OPG Website:
Schedule 2 and Schedule 3 deal with the initial “Declaration of Incapacity to Make Decisions about a Personal Matter” (old Form 1 and 2).
Schedules 4, 5 and 6 deal with “Determination of Regained Capacity”.
Schedule 4 is used when an agent requests a reassessment on capacity and,
schedule 5 when a service providers requests a reassessment.
Schedule 6 is used when the agent and service provider disagree on the capacity of the maker.
Note: Schedule 1 is the optional Personal Directives form.

10. PDA - Definition of capacity
The ability to understand the information that
is relevant to making of a personal decision
and the ability to appreciate the reasonable
foreseeable consequences of the decision
Slide presented by facilitator
It is important to realize the legal ramifications of being declared to have lost mental capacity to make personal decisions.
If the maker is declared incapable in one or more personal decision-making areas, their agent is legally able to make personal decisions on their behalf, provided the agent has been granted authority by the maker, to make decision in these areas. There are human rights issues at play here, and therefore capacity assessments have to be completed with care.
Capacity may be lost in one domain and not in others.
Capacity assessment is not about making right or wrong decisions.
Discussion on capacity. led by facilitator

11. What is Capacity? Capacity is not a medical diagnosis
Health care providers can provide a clinical opinion on capacity
Competency is legal decision made by the Court, based on evidence

12. Risk by Choice
A risky decision is not necessarily an incompetent decision
Stockbrokers, soldiers, medical professionals and patients make them every day.
It is the process – or the lack of process – by which risky decisions are made that calls into question the capacity of a patient to make that decision.

13. Capacity Assessment
Capacity assessment is a process for determining whether there is sufficient evidence to declare a person incapable of managing their affairs
The emphasis is on the quality of the decision-making process, not the actual course of action in which a person engages

14. Guiding Principles
All adults presumed capable of making their own decisions until contrary demonstrated
Taking away person’s right to liberty and freedom is a very serious step
Guardianship/Invoking PD is a last resort and there must be evidence that it is absolutely necessary
The onus is on the assessor to demonstrate lack of capacity, not on the patient to demonstrate capacity 14

15. Common Pitfalls
Practitioner doesn’t understand that capacity is not “all or nothing”, but specific to a decision
Practitioner fails to ensure that patient has been given relevant information about proposed treatment before making a decision 15

16. Costs of Poorly Conducted Assessments
Unnecessary, uncoordinated and multiple assessments is an assault on patient’s human dignity
Generates other costs and burdens by delaying services and taxing health care staff resources
Erodes ethical and moral integrity of the organization and trust
Generates further conflict, including possible complaints, ethics consults, litigation, etc. 16

17. Triggers Indicating Incapacity
A capacity assessment may be necessary if the trigger meets the following additional criteria:
An event or circumstance which potentially places a patient, or others, at risk that
Is apparently caused by impaired decision-making which
Necessitates investigation, problem-solving (and possibly action) on the part of a health care professional

18. Characteristics of a Valid Trigger
Substantive RISK to patient and/or others
Demonstrated or likely BEHAVIOUR
The risk seems to be caused by a DECISION
There is CONFLICT about the decision

19. Common Triggers Discharge planning!
Values/Beliefs in conflict with staff
Unable to understand different options for solving problems
Does not appreciate risks and benefits of different choices
Makes a choice, but unable to carry it out or to direct someone else to do so
Easily led and taken advantage of

20. Valid Trigger: Now what?
Gather information, identify the effected domains and attempt to problem-solve the issues.

21. Domains of Decision-Making
Decisions can be categorized into functional “Domains.”
Domains of Decision-Making
Healthcare
Employment
Accommodation
Legal Affairs
Choice of associates
Social Activities
Permits/Licenses
Education/Training
Financial and Estate
An incapacity to make decisions in one domain does not mean the patient is incapable of making decisions in other domains.

22. Information Gathering
Collect collateral information:
Families
Homecare
Resident managers
Investigate reversible causes of incapacity (i.e., delirium, medication, etc.)
Involve the interdisciplinary team and ask them to provide their perspectives.

23. Assess Risk
Investigate and document risky and unsafe situations prior to admission (if there were no risky or unsafe situations, what’s changed?).
Higher the risk to the patient or others, the stricter the standards
Explore risk reduction strategies

24. Problem-solving Be creative !!
Involve patients and families in problem-solving
Seek perspectives from other team members
Consider formal resources
Mobilize informal resources
Issue may be resolved by problem solving without formal capacity assessment

25. Best Practices Capacity should not be solely determined by MMSE scores
Best Practice: Multi-factorial and focus on functional ability of the individual

26. The Gold Standard Inquiry
Understanding: adequate factual knowledge base and understanding of options
Appreciation: adequate appraisal of outcome and justification of choices
Initiation: ability to follow through with choices

27. Capacity assessment in PDA
The assessor forms an opinion about the ability of the maker to:
Understand the information that is needed to make a decision
Retain information that is relevant to making a decision
Identify and appreciate the consequences of making or not making a decision
Communicate his/her decision about specific personal matters (checked off in the schedule) 27

28. How is capacity assessed in the PDA?
Two scenarios for initiating a capacity assessment:
A maker may name someone in their personal directive to initiate the assessment  consult physician / psychologist: Schedule 2
No one named in the personal directive  physician / psychologist initiates the assessment  consult with additional health care provider:Schedule3
Two people must be involved in the assessment.
Slide presented by facilitator
Capacity assessment is a process that is set out in the Personal Directives Act.
Person named could be someone other than the agent
A maker may name an assessor in their personal directive, who is to make a determination on their capacity.
When a maker names someone to assess their capacity they should choose someone who knows them well and is likely to notice a pattern of changes in the maker’s behavior over time.
To complete the assessment the named assessor must consult with a physician or a psychologist who will complete part 2 of the declaration (Schedule 2).
Physicians and psychologists play a an important role in the assessment process because they have the expertise to consider whether health issues contributing to temporary incapacity should be addressed first. Having an isolated episode of confusion is usually not enough evidence to be declared incapable.
When a personal directive has no instruction about who is to assess capacity the default is that a physician or psychologist will initiate the capacity assessment. They in turn must consult with a service provider ( e.g., another physician, psychologist, occupational therapist, nurse, social worker) who will complete part 2 of the declaration.
Note: The person who is named in a personal directive to complete the initial assement of capacity is not necessarily involved in completing a determination of regained capacity, unless that person is also the named agent.

29. Declaration of Incapacity: Schedule 2
Slide presented by facilitator
Every Schedule indicates when it is to be used and who is to complete specific sections.
Every Schedule also has the definition on “capacity”.
The designated person completes the first part of this Schedule.
The assessor must identify that he/she is designated to determine on the maker’s capacity.

30. Declaration of Incapacity: Schedule 3
Slide presented by facilitator
Schedule 3 is the default when the maker does not specify an assessor.
It can also be used when a designated assessor does not wish to or, can not be reached, to complete the assessment of capacity on the maker.
The physician or psychologist must first identify that they are a member in good standing of their college and that they have met with the maker and explained the purpose and nature of the assessment including the maker’s right to refuse to be assessed and the significance and effect of a finding that the maker lacks capacity.

31. Declaration of Incapacity: Interviewing the Maker
In the assessment process, assessors must interview the maker:
To explain the purpose and nature of the assessment
To advise the maker of his/her right to refuse assessment
To clarify the significance and effects of a finding of incapacity
Slide presented by facilitator
Interviewing the maker is specifically outlined in the Act regardless of whom initiates the capacity assessment: the person named to assess capacity or a physician or psychologist.
Discussion led by facilitator…….
The purpose of the interview is to engage the maker in the process – where possible e.g., coma patient.
What happens when a maker refuses to be assessed? No assement takes place.
When a maker provides assent (maker does not say no) an assessment can proceed.

32. Specific to the decision at hand.
Declaration of Incapacity: Schedule 2 and 3 Process of Capacity Assessment
The assessor forms an opinion about the ability of the maker to:
Understand the information that is needed to make a decision
Retain information that is relevant to making a decision
Identify and appreciate the consequences of making or not making a decision
Communicate his/her decision about specific personal matters (checked off in the schedule)
Specific to the decision at hand.
Slide presented by facilitator….
Ability to understand information that is needed to make a decision:
Assessor answers Yes or No and then express the reasons for this opinion.
Discussion led by facilitator…

33. Declaration of Incapacity: Completing Schedule 2 and 3
The assessor makes a determination that the maker lacks capacity in specific personal domain(s)
Slide presented by facilitator…Discussion on capacity domains…..
Step 5: Applicable areas of incapacity must be checked off by the assessor

34. Declaration of Incapacity: Completing Schedule 2 and 3
The assessor may:
Attach additional assessment reports when available
Recommend that the declaration be reviewed on a specific date
Slide presented by facilitator
A review of the capacity of the maker may be noted when the physician or psychologist and the person named to complete the assessment feel that a periodic review of the maker’s capacity is appropriate.
Note: The Declaration on capacity does not expire on the date specified for review ( Schedule 2 or 3).
When completing their section each assessor must sign, print his/her name and provide date the Schedule

35. Legal processes after completing an initial Declaration
The assessor must provide a copy of the Declaration of Incapacity to:
The maker
The named agents
Any other person named in the personal directive
Slide presented by facilitator
The maker has the option to request a reassessment or go to Court to request a reassessment.
All agents need to receive a copy as they will be required to show the declaration of incapacity to professionals,
to prove that they have authority to make decisions on behalf of the maker.

36. Best practice: When a personal directive is in effect
As a service provider ask for:
The personal directive, to note the name and authority of the agent (request agent ID)
The declaration of incapacity
The areas of incapacity for decision-making authority
Slide presented by facilitator
The service provider is accountable to ensure a personal directive is in place prior to accepting decisions being made by anyone other than the individual.
The service provider should be aware of the agent’s areas of authority as indicated in the personal directive. A standard identification check to confirm the authority of the agent should be established.
When a personal directive is in effect, the service provider must accept the decisions made by the agent.
If there is no agent, or they cannot be contacted, or they refuse to act on a needed decision, the service provider should act on any directions contained in the personal directive.
If the service provider has concerns with the agent or the decisions being made the service provider may wish to contact the Office of the Public Guardian and if necessary provide a written complaint. A copy of the Declaration of Incapacity should be made available to a service provider by the agent to prove that the agent has authority to make decisions at that time about the maker.
A copy of the Declaration of Regained Capacity could be requested from the maker.

37. Determination of Regained Capacity
A re-assessment of the maker’s capacity should occur when:
The agent, a service provider or the maker believes there has been a significant change in the maker’s capacity
A significant change is an observable and sustained improvement that does not appear to be temporary
Slide presented by facilitator
Schedules 4, 5 and 6 deal with “Determination of Regained Capacity”.
Schedule 4 is used when an agent requests a reassessment on capacity and,
schedule 5 when a service providers requests a reassessment.
Schedule 6 is used when the agent and service provider disagree on the capacity of the maker.
If a personal directive is in effect and the agent and service provider agree that a maker has regained capacity to make personal decisions; the re-assessment process is meant to be straight forward to facilitate the maker to return to making their own personal decisions.
What happens when no agent is available or named in the personal directive to complete a reassessment on the maker?
In that case one service provider would complete Schedule 5.
Part two which is normally filled out by the agent would be left blank.
The assessor would conduct the reassessment “in the best interest of the maker” to be able to regain liberty and self determination.

38. Determination of Regained Capacity: Requested by a maker
A maker may request that the maker’s agent or service provider assess the maker’s capacity
However, the agent or the service provider may refuse the request …
… if it does not appear that there has been a significant change in the maker’s capacity to make a personal decision
Slide presented by facilitator
PDA (3): “A maker may request that the maker’s agent or service provider who provides health care service assess the maker’s capacity, but the agent or the service provider may refuse the request if it does not appear to the agent or service provider that there has been a significant change in the maker’s capacity to make a personal decision.”
Note: The person who is named in a personal directive to complete the initial assement of capacity is not necessarily involved in completing a determination of regained capacity, unless that person is also the named agent.

39. Determination of Regained Capacity: Schedule 4 – Agent initiates process
Slide presented by facilitator
If the agent and service provider agree there has been a significant change in a maker’s capacity, they would talk with the maker and the three of them would make decision regarding the maker’s capacity. The agent and the service provider would document the changes and sign the Declaration of Regained Capacity together (Schedule 4).
If the agent and service provider do not agree on the maker having regained capacity an assessment must be completed by two service providers, one of them being a physician or psychologist.
This assessment follows the same rigorous process as the initial assessment. If those two service providers decide the maker has regained capacity, together they sign the Declaration of Regained Capacity (Schedule 6).

40. Regaining Capacity: Schedule 5 Service Provider initiates process
Slide presented by facilitator
Schedule 5 mirrors Schedule 4, except that it is a service provider who initiates the Determination of Regained Capacity and must consult with an agent.

41. Regaining Capacity: Schedule 4 Agent initiates process
Slide presented by facilitator
Schedule 4 is meant to guide the agent:
The agent can only make a determination of regained capacity for a maker about personal decisions over which they were given authority by the maker.
The agent must speak with the maker and with a healthcare service provider who recently provided a service to the maker.
In other words, they must speak with a health care provider who has knowledge about the maker.

42. Regaining Capacity: Schedule 4 Agent initiates process – Part 1
The agent must:
SPEAK WITH THE MAKER AND SERVICE PROVIDER
Review health or other records about the maker that are relevant to the assessment
Discuss the records with the maker’s physician or health care practitioner
Slide presented by facilitator
Agents may request to view confidential records of the agent, the Act provides them with this authority in order to fulfill their role as agent.
The reassessment is a process between the agent and a physician (or psychologist), discussions are important in clarifying or highlighting issues with the maker.
Discussion led by facilitator on what would be important records to consider …

43. Regaining Capacity: Schedule 4 Agent initiates process - Part 1
In assessing whether the maker has regained capacity the agent must state that:
the agent/ service provider who provided health care services to the maker has observed a significant change in the maker’s capacity
has considered statements/ evidence provided a service provider that there has been a change in the maker’s capacity
has considered the changes in the maker’s capacity over a period of time
Check off any applicable areas over which the maker regained capacity.
Slide presented by facilitator

44. Regaining Capacity: Schedule 4 Agent initiates process – Part 2
Done by service provider
Follows the same steps as the agent did in Part 1
Slide presented by facilitator…

45. Regaining Capacity: Schedule 5 Service provider initiates process
Schedule 5 is the reverse with same steps as schedule 4
Part 1: service provider
Part 2: agent

46. Schedule 6 - agent and service provider disagree on a maker’s regained capacity
Slide presented by facilitator
A physician or a psychologist: completes Part 1
Part 2 is completed by a service provider who must indicate their name and title or position.
Note: The definitions of “capacity” and “significant change” as defined in the PDA are listed on the Schedule for reference.
The decision of the two assessors who complete Schedule 6 is binding to the maker, agent and service provider.

47. Schedule 6: Determination of regained Capacity
Part 1 : physician or psychologist
Part 2 : service provider
The assessor determines that:
it is in the best interest of the maker to conduct the assessment
the maker has regained capacity to make decisions about specific personal matters
Follows the same guiding rules in schedule2/3
Slide presented by facilitator
PDA 10. 1(4)
When the agent and a service provider can not come to an agreement on the maker’s regained capacity a full assessment must then be completed by a neutral 3rd party comprised of 2 service providers one of which must be a physician or psychologist.

48. Legal process after a maker has been determined to have regained capacity
The decision of the 2 assessors who complete Schedule 6 is binding to all parties.
Any one in disagreement with the assessors may make an to request the Court to make a determination of capacity of the maker
The Court may order a report on the capacity of a maker be prepared.
Slide presented by facilitator
PDA 27(1) An application to the Court is made by way of origination notice.

49. How is capacity assessed in the PDA?
Two assessors required for assessment of capacity for all schedules
Assessors: physician/psychologist(2,3,6)
: service provider in health care
(3,4,5,6)
Skills: not defined.
Recommended: scope of practice and competence

50. Liability
The Personal Directives Act states that an agent or a service provider is not liable for what they do or omit to do,
as long as they are acting in good faith and in accordance with the Act.
Slide presented by facilitator
The intention is that agents and service providers act in the maker’s best interest and in good faith.
As long as this is the case, they are protected from liability.

51. Do you need more PDA information…?
OPG website:
OPG Toll free:
OPG North: Grande Prairie St. Paul –
OPG Edmonton: – 0017
OPG Red Deer: – 5165
OPG Calgary : – 3364
OPG South: Lethbridge – Medicine Hat 403 –
Slide presented by OPG
It is hoped that this training session clarified the new legislative requirements in assessing the capacity of the makers.
Should there be any questions about what you have learned after the training sessions, or you wish to have a presentation about the PDA in your agency/community you may call the local Office of the Public Guardian nearest to you.