Powers of Attorney and Adult Guardianship: Pitfalls and Practice Reginald Watson, Q.C. Miller Thomson LLP (Regina) Wills, Estates and Trusts: End-of-Life Decision Making Televised Seminar Friday, October 3, 2014
1 I. Introduction Continuing Professional Development Powers of Attorney and Adult Guardianship: Pitfalls and Practice I am writing this practice paper from the point of view of a litigator who has been involved in a series of cases dealing with the topics that follow. This paper will reference a number of statutes and regulations. The technical and formal aspects of the applicable documents and court materials are very important but time does not allow for a detailed discussion of those matters. The forms in the regulations are helpful. My mission in writing this paper is to alert you to some risk management considerations. Personal jeopardy may befall you if your business practices are less than what they should be. The lead up to the signing of an Enduring Power of Attorney can create all kinds of trouble. Elder abuse can be facilitated by the execution of a Power of Attorney. Litigation involving capacity and elder abuse can be expensive. It can also be difficult as the adult involved is often deceased, frail or incompetent to testify. Our mission as lawyers is to listen to our clients, offer advice and proceed with the instructions that we receive. If the mission is to draft a Power of Attorney, a Health Care Directive or an Application for Guardianship, we want to ensure that we meet or exceed the standard of competence that we are duty bound to provide. As lawyers we are called upon to make unassisted determinations of capacity for the clients we act for. Capacity is usually presumed. The cases that haunt us are those cases where capacity may be in doubt or lacking. When in doubt keep good notes, spend extra time obtaining relevant evidence of capacity and consider obtaining opinions from qualified assessors. A thorough job will cost extra money. There is not a bright red line demarcating capacity and incapacity. In practice we deal with people along the capacity continuum. In practice and in adult life we usually start with capacity and for one reason or another we slide towards incapacity as a result of aging, accident or disease. The slide towards incapacity is not linear. A client may have capacity, lose capacity and regain it. In the gray zone between doubtful capacity and doubtful incapacity judgment needs to be exercised by lawyers in the world of Powers of Attorney. In the gray zone the likelihood of litigation is at its highest and careful scrutiny of your role, your work and your business practices will be front and center if things go bad. You could easily be called upon as a witness to testify as to the facts that you relied upon in determining that your client had capacity at the time a Power of Attorney was signed. How reliable is your unassisted memory? Do you use a checklist? Are your notes sufficient to refresh your memory to testify? Are your notes sufficient to show the factual basis upon which you relied to make a judgment call as to capacity or incapacity? Will your business practices pass a peer scrutiny test? Have you ever turned a client down when asked to prepare a Power of Attorney? Who was present when your instructions were received or the Power of Attorney was signed? As lawyers, our role is to reduce risk for our clients and ourselves. We are obliged to carry out the instructions that we receive provided that we stay within ethical boundaries. We know that risk for our clients and ourselves maybe be reduced if good business practices are in pace and observed but when we practice in gray zone cases, risk will never be eliminated.
2 II. Legislative Scheme in Saskatchewan (a) The Powers of Attorney Act, 2002 2(1) In this Act: capacity means, other than in section 4, clause 19(1)(b) and section 21, the ability: (a) to understand information relevant to making decisions with respect to property and financial affairs or personal affairs, as the case may be; and (b) to appreciate the reasonably foreseeable consequences of making or not making a decision referred to in clause (a); Generally speaking, a Power of Attorney is a document given by one person (the Grantor ), to another person (the Attorney ), giving the Attorney the power to act on the Grantor s behalf for either a general purpose or a specific purpose. The Attorney is vested with the legal authority to make decisions concerning the specified property, financial and personal affairs of the grantor. The scope and content of the Power of Attorney determines the extent and duration of the powers given by the Grantor to the Attorney. Great care needs to be taken in setting out the scope of the powers conveyed by the Power of Attorney. A Power of Attorney is not a one size fits all document. A Power of Attorney may be expressly limited in scope or it may be general in nature. A Power of Attorney may or may not be enduring. Where the Power of Attorney is not enduring, it is of no effect when the Grantor loses capacity. If the Power of Attorney is enduring, the authority granted by the Grantor to the Attorney continues when the Grantor lacks capacity. In the case of an Enduring Power of Attorney granted in or after 2004, the Attorney is a property and personal attorney for the Grantor unless otherwise stated. We have personal attorneys (personal affairs) and property attorneys (property and financial affairs). Section 3 allows the grantor to sign an Enduring Power of Attorney that continues when the grantor lacks capacity. The Power of Attorney can become operational upon execution or upon the happening of a specific event. In Section 18 of the Act the attorney can be asked to account. In Section 19 of the Act the termination of the authority granted under an Enduring Power of Attorney ends when a specified event occurs. see also: P-20.3 Reg 1 - The Powers of Attorney Regulations and the CPLED Materials dealing with Powers of Attorney (b) The Adult Guardianship and Co-decision-making Act 2. In this Act: (c) capacity means the ability:
3 (i) (ii) to understand information relevant to making a decision; and to appreciate the reasonably foreseeable consequences of making or not making a decision; Co-decision makers are an option to be considered. A co-decision maker can assist in preserving the right to self determination of the dependant adult and the dignity of the adult is somewhat preserved. These notions are stated in section 3 which provides: 3. This Act shall be interpreted and administered in accordance with the following principles: (a) adults are entitled to have their best interests given paramount consideration; (b) adults are entitled to be presumed to have capacity, unless the contrary is demonstrated; (c) adults are entitled to choose the manner in which they live and to accept or refuse support, assistance or protection, as long as they do not harm themselves or others and have the capacity to make decisions about those matters; (d) adults are entitled to receive the most effective, but the least restrictive and intrusive, form of support, assistance or protection, when they are unable to care for themselves or their estates; (e) adults who have difficulty communicating because of physical or mental disabilities are entitled to communicate by any means that enables them to be understood; (f) adults are entitled to be informed about and, to the best of their ability, participate in, decisions affecting them. The next of kin need to be served and an issue in respect of what a relationship of some permanence is often erupts between the children of the first marriage and the alleged common law partner. The affidavit evidence in support of the application for guardianship should address the matters enumerated in sections 13, 15, 35 and 39 of the Act. The requirement of a bond is expensive and exclusionary. Many applicants do not qualify for a bond. To lower the bond requirement it may be that your client should seek only those powers necessary and major decisions should be reserved. A bond is not required for a personal guardian. see also: The Adult Guardianship and Co-decision-making Act, Regulations and Forms (c) The Public Guardian and Trustee Act 2(1) In this Act: (a.2) capacity means the ability:
4 (i) to understand information relevant to making a decision; and (ii) to appreciate the reasonably foreseeable consequences of making or not making a decision; see also: P-36.3 Reg 1 - The Public Guardian and Trustee Regulations (d) The Health Care Directives and Substitute Health Care Decision Makers Act 2(1) In this Act: (b) capacity means the ability: (i) to understand information relevant to a health care decision respecting a proposed treatment; (ii) to appreciate the reasonably foreseeable consequences of making or not making a health care decision respecting a proposed treatment; and (iii)to communicate a health care decision on a proposed treatment; III. Capacity To a large extent capacity has been the subject of comment by previous presenters. Capacity is often a defined term. Capacity for what is the question that must be asked. Within the Power of Attorney arena we, as lawyers, do the best we can. The inquiries that we make as lawyers regarding capacity should be thorough in nature and this is especially so as we enter the gray zone. Lawyers should not be lulled into interpreting the results of screening tests such as the Mini Mental Status Exam or the Cognistat. The determination of capacity needs to be assessed in light of the decision to be made. The determination of who can visit with me, whether or not I understand the nature and effect of the granting of an enduring Power of Attorney and whether or not I have capacity to appoint a proxy to make health care decisions or to get married or sign a will are different issues. An individual may have the capacity to sign a personal power of attorney and not a property power of attorney. Can a person have capacity to appoint a proxy as a substitute health care decision maker and not have capacity to give consent for a complicated treatment? The determination of capacity is ultimately a finding of fact that needs to be made. We need to ask ourselves if we are equipped to make such a determination. Capacity can be transient; it can be clouded by delusions or drugs. Capacity can be difficult to assess for cases and clients in the gray zone. In the Enduring Power of Attorney arena, contingent Powers of Attorney are common and the contingent event is often a declaration of incapacity. Capacity is often stated without qualification, as a global concept, as opposed to being in relation to the decision that needs to be made. This ambiguity can cause difficulty. Finding a health care professional to conduct a capacity assessment can create practical challenges as well. The health care professionals designated as being within the prescribed group to assess capacity are specified in section 5(2) regulations and include the following: (a) a duly qualified medical practitioner;
5 (b) a practicing member as defined in The Psychologists Act, 1997; (c) a registered psychiatric nurse as defined in The Registered Psychiatric Nurses Act; (d) a registered nurse as defined in The Registered Nurses Act, 1988; (e) (f) (g) a practicing member as defined in The Occupational Therapists Act, 1997; a practicing member as defined in The Social Workers Act; and a speech-language pathologist as defined in The Speech-Language Pathologists and Audiologists Act. See: Form J from the regulations IV. Incapacity The Public Guardian and Trustee Act contains provisions that provide a mechanism for the issuance of a Certificate of Incapacity. A Certificate of Incapacity can be issued by the chief psychiatrist or a physician, designated by the chief psychiatrist, when it is determined that a person lacks the capacity to manage his or her estate. When a Certificate of Incapacity is issued, the public guardian and trustee s powers are activated in regard to the person s estate. An appeal mechanism to the Court of Queen s Bench is included in section 28.8 of the The Public Guardian and Trustee Act. Certificates of Incapacity are subject to the terms and provisions contained in section 28.9 The Public Guardian and Trustee Act which provides: 28.9(1) Subject to subsection (2), every certificate of incapacity is deemed to be revoked one year from the date the certificate of incapacity is issued. (2) A certificate of incapacity issued with respect to a person is not deemed to be revoked pursuant to subsection (1) if: (a) proceedings have been commenced pursuant to The Adult Guardianship and Co-decision-making Act to appoint a property guardian for that person; (b) a property guardian for that person has been appointed pursuant to The Adult Guardianship and Co-decision-making Act; or (c) the public guardian and trustee is property guardian for that person. The public guardian and trustee does not automatically become a personal guardian or a substitute decision maker for health care decisions. The public guardian and trustee can apply pursuant to section 40.1 of The Public Guardian and Trustee Act to be appointed as a personal guardian.
6 The statutory scheme in Saskatchewan is such that a void exits in the default appointment of a personal guardian when a Certificate of Incapacity is issued. This void creates chaos where a personal power of attorney or a court order appointing a personal guardian does not exit and personal decisions need to be made for a person without capacity. The default position for a substitute health care decision maker, in the absence of a specific advance directive, personal guardian, proxy or nearest relative is governed by section 16(4) of The Health Care Directives and Substitute Health Care Decision Makers Act which allows two treatment providers to make a health care decision. The placement of a person without capacity in a long term care facility is usually viewed as a personal decision that is made by a personal guardian or personal power of attorney. The Mental Health Services Act contains provisions for mental health assessments to be conducted without the consent of the patient and qualifying patients are considered involuntary patients in certain circumstances and they are detained in an inpatient facility. V. Notions and Priorities A Power of Attorney has its genesis in the hand of the Grantor as opposed to a court or chosen physician. We need to understand the interplay and priorities that exist between Powers of Attorney, Adult Guardianship Orders, Certificates of Incapacity and Health Care Directives if we are to give good advice in the difficult time of diminished capacity. It is during this time, when persons are most vulnerable and end of life decisions have to be made if proactive planning did not take place. If we start from the position that capacity is presumed and if it cannot be disproved, there is little need for a Power of Attorney or Health Care Directive. While the notion of I am in charge of me is congruent with the right to self determination and it may have some traction with some of you, it does not deal with the inevitable contingency of decline into the gray zone and gray zone planning is generally viewed as a good thing. The decision to sign a Power of Attorney is a good one if it springs from an informed decision at the time the Power of Attorney is signed. When the foundational facts that under pin the decision to sign a Power of Attorney change and if capacity still resides with the Grantor, the matter of revocation should be considered, if appropriate and it may be that a new Power of Attorney needs to be drawn. Many of us will have a Will, a Power of Attorney and a Health Care Directive. A properly drawn enduring Power of Attorney can save the necessity and expense of an application for guardianship and it is a good thing. Does prudence require lawyers to encourage a regular review of these types of documents? Should there be a disclaimer or information pamphlet included that speaks to the issue of review or check-up? Should lawyers offer cradle to grave services? VI. Priorities Orders issued pursuant to The Adult Guardianship and Co-decision-making Act trump the attorney designated pursuant to a Power of Attorney:
7 52. Unless the court otherwise orders, an order appointing a property decision maker prevails over the terms of a power of attorney given by the adult. The Act does provide that the attorney acting pursuant to a power of attorney is to be served with any guardianship application. The Public Guardian and Trustee Act is subject to The Health Care Directives and Substitute Health Care Decision Makers Act: 40.11(1) Subject to the court order appointing the public guardian and trustee, the public guardian and trustee, in his or her capacity as personal guardian of a dependent adult, has authority with respect to the following matters: (h) Subject to The Health Care Directives and Substitute Health Care Decision Makers Act, decisions respecting the dependent adult s health care, including decisions respecting admission to a health care facility or respecting treatment of the dependent adult; The Adult Guardianship and Co-decision-making Act is subject to The Health Care Directives and Substitute Health Care Decision Makers Act. Health care decisions are personal decisions that can be made by a personal guardian in most cases. Section 15(h) of The Adult Guardianship and Co-decision-making Act limits this power and states: 15. Where the court makes an order pursuant to section 14, the court shall specify which of the following matters are to be subject to the authority of the personal co-decision-maker or personal guardian: (h) subject to The Health Care Directives and Substitute Health Care Decision Makers Act, decisions respecting the adult s health care, including decisions respecting admission to a health care facility or respecting treatment of the adult; The Health Care Directives and Substitute Health Care Decision Makers Act has provisions for specific and general directives concerning health care decisions. A health care decision includes a decision related to consent, refusal of consent or withdrawal of consent. Section 5 states: 5(1) Where a health care decision in a directive clearly anticipates and gives directions relating to treatment for the specific circumstances that exist, the health care decision in the directive has the same effect as a health care decision made by a person who has the capacity to make a health care decision respecting a proposed treatment. (2) Where a health care decision in a directive does not clearly anticipate and give directions relating to treatment for the specific circumstances that exist,
8 the directive is to be used for guidance as to the wishes of the person making the directive. The Court cannot vest the adult guardian or the public trustee and guardian the power to over ride the provisions of a section 5(1) specific directive. see: Section 15(h) of The Adult Guardianship and Co-decision-making Act A proxy cannot over ride a specific directive the provisions of a section 5(1) specific directive. see also: section 12(a) of The Health Care Directives and Substitute Health Care Decision Makers Act: A personal guardian does not have authority to: (a) consent to the withdrawal of life-support systems used for the adult; (b) consent on behalf of the adult to a donation for the purposes of an inter vivos transplant pursuant to The Human Tissue Gift Act; VII. Conclusion The entire field of substitute decision making for property, personal and health care decisions may appear straight forward on its face. However, when practicing in the gray-zone additional steps need to be taken to ensure that the documents we prepare have their full intended effect when used. The difficulties that can be caused by substitute decision makers is a topic for another day. This is a developing area of litigation. DATED at Regina, Saskatchewan this 15 th day of September, 2014. MILLER THOMSON LLP Per: Reginald A. Watson, Q.C.