CLEONet. for community workers and advocates who work with low income and disadvantaged communities in Ontario.

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1 This webinar is brought to you by CLEONet ca CLEONet is a web site of legal information for community workers and advocates who work with low income and disadvantaged communities in Ontario. 2010, Community Law School (Sarnia-Lambton) Inc.

2 About our presenter Judith Wahl has been the Executive Director and Senior Lawyer at the (ACE) since 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.

3 Powers of Attorney and other Substitute Decision Making Authorities Judith Wahl 3

4 Advocacy Centre for The Elderly 2 Carlton Street, Suite 701 Toronto, Ontario M5B 1J3 Tel Fax wahlj@lao.on.ca Website 4

5 Two Webinars Part 1 - Mental Capacity and Decision Making - The ABCs of Substitute Decision i Making Part 2 - Powers of Attorney and other Substitute Decision Making Authorities 5

6 Part I of 2 Mental Capacity and Substitute Decision Making Decision-making When someone else gets authority to make decisions i 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 6

7 Today s Webinar - Part 2 of 2 Powers 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 7

8 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 dsubstitute t Decision i Makers for Property AND after the explanation the Substitute Decisions Makers for Personal Care We will also take questions at the end 8

9 Legislation Substitute Decisions Act (SDA) Health Care Consent Act (HCCA) Mental Health Act (MHA) See Laws on the Ontario Government website at 9

10 What Decisions do you make in your Life? Decisions about Property money, real estate, t personal goods, furniture, things of value to the person, bank accounts Decisions about Personal Care Shelter, nutrition, hygiene, safety, clothing and health care 10

11 Who Decides? You decide for yourself if MENTALLY CAPABLE Your Substitute Decision Maker (SDM) if you are NOT mentally capable 11

12 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 12

13 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 incapable A Statutory Guardian for Property A Court Ordered Guardian of Property A Trustee appointed under the OAS or CPP legislation 13

14 Powers of Attorney for Property Your attorney named in a POA Property if 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 14

15 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 15

16 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 16

17 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 17

18 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)? 18

19 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 19

20 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, p 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 20

21 Application to replace the OPGT as your Statutory t t Guardian Your spouse or partner, your relatives, or a trust t 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 21

22 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 22

23 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. 23

24 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 i course described d in s.4 c) 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,

25 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. 25

26 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) 26

27 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 27

28 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 28

29 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 29

30 Questions? Any questions about Powers of Attorney for Property or other Substitute Decision Makers for Property? 30

31 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 31

32 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 t document your wishes about health care and treatment. That document must be signed by you and two witnesses in the presence of each other. 32

33 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 33

34 Important things to think about before signing i 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 34

35 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 35

36 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 36

37 List of SDMs for Health Care 1. Court Ordered Guardian of the Person 2. Attorney in a Power of Attorney for Personal care 3. Representative ( person appointed by the Consent and Capacity Board) 4. Your spouse or partner 5. Your Child or parent 6. Your Brothers or sisters 7. Any of your other relatives 8. The Public Guardian and Trustee 37

38 Requirements for Person to be an SDM Person highest in hierarchy may give or refuse consent only if he or she: a) is capable in respect to the treatment b) is at least 16 years old unless the parent of the incapable person c) is not prohibited by a court order or separation agreement from acting as SDM d) is available e) is willing to act as SDM 38 38

39 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 th 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 h 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 39

40 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, or ii) are together the parents of a child, or iii) 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. 40

41 Definitions PARTNER Two 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 RELATIVE People are relatives if related by blood, marriage or adoption 41

42 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 42

43 Questions? Any questions about POA personal Care or other Substitute Decision Makers for Personal Care or Health Care? 43

44 What are the Duties of an Attorney for Property and Guardian for Property? 44

45 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 45

46 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 46

47 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 47

48 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. 48

49 Accounts An Attorney for Property shall, in accordance with the regulations, keep accounts of all transactions involving the property. 49

50 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, i that t 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 50

51 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 s attorney for personal care or guardian of the person. 51

52 Required Expenditures An Attorney for Property shall make the following expenses from the incapable person s property... Expenses that t 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 s other legal obligations. 52

53 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 earlier If no wishes then best interests 53

54 Other Duties Not restrain/confine unless essential to prevent serious bodily harm or to allow the person greater freedom or enjoyment 54

55 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 doa 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 55

56 Questions? Any questions about any part of this webinar? 56

57 This webinar was brought to you by CLEONet For more information visit the Health and Disability section of CLEONet at ca For more public legal information webinars visit: , Community Law School (Sarnia-Lambton) Inc.