Transcript SDA

Jeffrey Shinehoft
The SDA handles two distinct capacity issues:
 Capacity in connection to Property (finances); and
 Capacity in connection to the Person (health care).
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Shinehoft Law
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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.
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The SDA legislates a presumption of capacity
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A person who is eighteen years of age or more is
presumed to be capable of entering into a contract.
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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).
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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.”
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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.”
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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
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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).
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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.
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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.
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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.
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The "appreciate" standard attempts to capture the evaluative nature of capable decisionmaking, 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.
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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.
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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:
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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.
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The Supreme Court of Canada in Starson v.
Swayze, [2003] 1. S.C.R. 722 is instructive
regarding the issue of capacity.
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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:
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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.
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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:
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“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.”
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1.
Continuing Power of Attorney;
2.
Statutory Guardians of the Person;
3.
Court Appointed Guardian; and
4.
Court Appointed Temporary Guardian.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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◦ 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.
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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;
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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.
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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.
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Shinehoft Law
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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.
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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.
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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.
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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.
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Whether the proposed guardian is the attorney under a continuing power of
attorney;
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The incapable person’s current wishes, if they can be ascertained; and
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The closeness of the applicant’s relationship to the incapable person.
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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.
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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.
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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.
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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”.
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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.
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A guardian shall, in accordance with the regulations, keep accounts of all
transactions involving the property
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Powers and duties of a guardian of the Person shall be exercised and
performed diligently and in good faith.
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Guardians can be liable for damages resulting from breach of their
Duties.
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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).
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Shinehoft Law