1,185
edits
Difference between revisions of "Types of Substitute Decision-Making in Residential Care"
From Clicklaw Wikibooks
Types of Substitute Decision-Making in Residential Care (view source)
Revision as of 19:40, 27 June 2014
, 19:40, 27 June 2014→c) Common Legal Issues Arising Around Representation Agreements
| Line 385: | Line 385: | ||
;Registering the documents: The representation agreement and documents such as enduring power of attorney can be voluntarily registered at the Nidus Personal Planning Resource Centre & Registry. Hospitals, banks and government services can search the registry to find out who the attorney or representative is if they need to know. See [http://www.nidus.ca www.nidus.ca]. | ;Registering the documents: The representation agreement and documents such as enduring power of attorney can be voluntarily registered at the Nidus Personal Planning Resource Centre & Registry. Hospitals, banks and government services can search the registry to find out who the attorney or representative is if they need to know. See [http://www.nidus.ca www.nidus.ca]. | ||
=====c) Common Legal Issues Arising Around Representation Agreements===== | =====(c) Common Legal Issues Arising Around Representation Agreements===== | ||
The most common legal issues that arise around representation agreements for adults in residential care facilities relate to the circumstances in which these were created, especially if executed after the resident moves to the facility. Many adults have few options in later life about who, if anyone, they can reasonably choose to be a representative. Like other legal documents, there may also be concerns about the capacity of the individual at the time the agreement was signed, the spectre of undue influence, and conflicts about the decisions being made by the representative. | |||
Canadian research has indicated that supported decision-making with vulnerable adults is challenging within the current health care and financial context. People given the authority to help with decisions often move by necessity or frustration, to a more direct substitute decision-making and plenary approach, because that is what the broader system forces them into doing. | Canadian research has indicated that supported decision-making with vulnerable adults is challenging within the current health care and financial context. People given the authority to help with decisions often move by necessity or frustration, to a more direct substitute decision-making and plenary approach, because that is what the broader system forces them into doing. | ||
| Line 393: | Line 393: | ||
Representatives have identified that even though they have the legal authority as substitutes to make decisions about the care and well-being of the resident, many decisions in residential care such as medication changes, are still made without their knowledge or consent [examples of exclusion from care planning are provided in the Chapter 4 on Legal Issues When Living in Residential Care]. Representatives also point out they often lack needed information from the facility care providers in order to make informed decisions. The Patient Care Quality Office has stated to concerned family members that it will not deal with concerns related to representation agreements, even if the situation involves areas over which the Office normally has jurisdiction (such as resident’s rights or quality of care). | Representatives have identified that even though they have the legal authority as substitutes to make decisions about the care and well-being of the resident, many decisions in residential care such as medication changes, are still made without their knowledge or consent [examples of exclusion from care planning are provided in the Chapter 4 on Legal Issues When Living in Residential Care]. Representatives also point out they often lack needed information from the facility care providers in order to make informed decisions. The Patient Care Quality Office has stated to concerned family members that it will not deal with concerns related to representation agreements, even if the situation involves areas over which the Office normally has jurisdiction (such as resident’s rights or quality of care). | ||
==3. Court Appointed Substitutes - Adult Guardianship/Committeeship== | |||
A committee is an individual appointed by the BC Supreme Court to make personal, medical, legal, or financial decisions for someone who is mentally incapable and cannot make those decisions. The person must be found to be mentally incapable under the Patients Property Act. | |||
To become a committee, the individual is appointed by an order under the Patients Property Act. Among other things, the court application requires affidavits from two doctors stating the person is not able to manage their financial and legal affairs (or their personal and medical decisions) and explaining why. | |||
A committee of the person makes personal and medical decisions for someone who is not mentally capable, including decisions about where the person will live. Usually a family member or close friend will do this. Rarely, the Public Guardian and Trustee will agree to be committee of the person. Only the court can appoint a committee of the person. | |||
A committee of the estate makes financial and legal decisions for someone who is not mentally capable. A family member or close friend, a trust company, or the Public Guardian and Trustee of British Columbia can fill this role. | |||
===Important Legislative Change=== | |||
A major 2013 report “No Longer Your Decision” by the Office of the British Columbia Ombudsperson made a number of recommendations to the Ministry of Justice for legislative or regulatory changes related to committeeship and how people are determined to be mentally incapable. The Ministry committed to implementing eleven of those recommendations by July 1, 2014. | |||
As a result, the Adult Guardianship Act may finally replace the Patients Property Act as the law in B.C. Two major changes have been noted: | |||
* The criteria for deciding when a certificate of incapability is issued will be standardized. | |||
* Guardians will be required, where reasonable, to encourage the adult’s involvement in decision making that affects the adult. | |||
The information given below, however, is based on the current system. | |||
A committee of the estate can be appointed by the court. The Public Guardian and Trustee can also be appointed as committee of the estate by a certificate of incapability under the Patients Property Act. No one else can be appointed this way. | |||
Generally the committee has the same powers to deal with the person's estate and affairs as the person had when they were capable. However the court can restrict the committee’s powers. A committee cannot make a will or estate plan for the person, vote on their behalf, or consent to marriage for them. Committees have a fiduciary responsibility; they must put the person’s interest ahead of their own and cannot mix their assets with the other person’s. | |||
As long as they are mentally capable, a person can nominate someone they would prefer to be their own committee, in case they ever need one. The court will usually follow the person’s guidance. There are specific formal processes and a simple document to nominate a committee. | |||
The responsibilities as a committee can include: | |||
* handling the person's property, | |||
* doing the person's banking, | |||
* paying the person's expenses, | |||
* budgeting for the person's family, | |||
* selling the person's personal property and real estate, | |||
* entering into contracts for the person and operating the person's business, | |||
* dealing with any lawsuits involving the person, | |||
* filing the person's income tax returns, | |||
* applying for the person's pension and other benefits, | |||
* making medical decisions for the person, | |||
* deciding where and how the person should live. | |||
The Public Guardian and Trustee reviews all applications for committees. | |||
A Committee of Person may consent or refuse to consent to health care necessary to preserve life. The Court may set limits on the Committee. Where there is a Committee of Person, the health care provider must obtain consent from the Committee. A Committee of Person cannot override the Mental Health Act regarding involuntary treatment. | |||
Having a committee appointed has a major effect on existing legal documents it terminates a power of attorney, including an enduring power of attorney. It usually terminates a representation agreement as well. | |||
==4. Substitute Decisionmaking through Instructions - Advance Care Directives== | |||
An advance directive is not substitute decisionmaking. It is a set of instructions to health care providers. However in effect it can make the health care provider the substitute decisionmaker for health care decisions in specific circumstances. | |||
===a. The Basics=== | |||
Advance directives are recognized by Part 2.1 of the Health Care Consent and Care Facility (Admission) Act. They must be in writing and witnessed by two people. There are prohibitions on who can be witnesses. The advance directive can be changed or revoked by the person, if the person changes her or his mind at some point in the future. | |||
Advance directives have a specific test for mental capacity which people must meet to use this document for themselves. The person is presumed to be mentally capable of understanding the nature and consequences of the proposed advance directive. However a person is not considered capable, if the adult does not understand that: | |||
:(a) the scope and effect of the health care instructions set out in the advance directive (basically that a health care provider may not provide to the adult any health care for which the adult refuses consent in the advance directive), and | |||
:(b) a temporary substitute decisionmaking will not be chosen to make decisions on the adult’s behalf for any matter that is covered in the advance directive. | |||
The BC Ministry of Health has developed an advance directive form for individuals to use when undertaking advance care planning, but using the form is optional. | |||
=====Does the health care provider always have to follow the advance directive?===== | |||
There are certain circumstances in which health care providers are not required to follow an advance directive. These include if: | |||
* the “directions” in the advance directive are unclear, or do not apply to the treatment in question. | |||
* the wishes and values of the person change after writing the advance directive (but while the person is still mentally capable). | |||
* there have been significant improvements in medical treatment since the advance directive was made. | |||
*the instructions are illegal. | |||
Also if the health care decision falls into one of the exceptions set out in section 19.8., e.g. it is not covered by the advance directive. The advance directive will not be followed if there is a “committee of the person” or representation agreement in effect (unless the representation agreement states that certain decisions are to be as set out in the advance directive and not made by a representative). | |||
===b. Common Legal Issues with Advance Directives=== | |||
Advance directives can provide consent or refuse consent to health care. Although people have often expressed their wishes formally or informally to family, friends or care providers, advance directives are a relatively new recognized legal document in British Columbia. Advance directives have typically been considered as geared to “end of life care”, and may not be well suited for what happens in providing day to day health care for people living in residential care facilities. | |||
In other jurisdictions, advocates have found that when health care providers know there is an advance directive or similar legal document, they may not communicate with the mentally capable older adult to determine the person’s wishes about their health care. Instead, they rely on the document and in some cases, apply it inappropriately to situations the person likely never intended (for example, not being treated for ordinary health conditions, or conversely,treating the advance directive as consent). At a minimum, the advance directive must set out what treatment is being refused and in what circumstances. | |||
Advance directives have several positive aspects | |||
* they can open lines of communication; | |||
* provide direction of care; | |||
* give the person control over decisions and | |||
* may relieve family stress. | |||
On the other hand, there have been several negative aspects of advance directives identified. These include that the advance directives | |||
* are often too "procedure"- oriented (focused on the formal requirements); | |||
* require extensive interpretation; | |||
* may be ineffective when most needed; | |||
* may lead to "under-treatment", and | |||
* are pre-made, so the decision is not based on complete information. | |||
The Canadian Bar Association noted the potential for coercion in advance directives. They also found that advance directives are often filled in by or with health care administrators, in the absence of discussions with other health care or legal professionals. | |||
Health care providers in British Columbia note they are beginning to have older adults come to them with very lengthy advance care directives drafted by individuals or lawyers. The documents may be vague statements of wishes that the person wants the health care provider to respect. At the other end of the spectrum, the document may identify multiple conditions and contingencies, including many situations the people are unlikely to face (in effect, a “shopping list of possibilities”). Both situations make it difficult for the health care provider to determine whether or not the advance directive can or should be followed. | |||
Advance directives are subject to the exceptions in section 19.8 of the Health Care Consent and Care Facility (Admission) Act. Each exception is open to personal and professional judgment, as well as significant differences of opinion on when and how the advance directive can or should be overridden. As noted the chapter on Consent & Capacity, health care consent is based on “informed consent”. That means not only knowing what the options are, but how these apply to this person in this situation at this point in time. Consent must be informed, given voluntarily; and not be obtained through misrepresentation or fraud. | |||
{{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}} | {{REVIEWED | reviewer = BC Centre for Elder Advocacy and Support, June 2014}} | ||
{{Legal Issues in Residential Care: An Advocate's Manual Navbox}} | {{Legal Issues in Residential Care: An Advocate's Manual Navbox}} | ||
