Types of Substitute Decision-Making in Residential Care: Difference between revisions

Some health care providers working in residential care may acquiesce to a strong minded person becoming the older adult’s TSDM, even where other family members feel the person is imposing his or her wishes on the health care decisions to be made. These types of situations should be referred by the health care provider to the Health Care Decisions Consultant with the Public Guardian and Trustee Office for resolution.

There are a number of common financial decisions that need to be made by or on behalf of residents in care facilities. These include but are not limited to:

* the management of the "comfort allowance" or other pocket money.

   

The power of attorney is a legal document which many older adults, family as well as people working in residential care facilities find confusing. This document allows an adult to appoint another person (referred to as the “attorney”) to deal with business, income and property on the person’s behalf, as well as to make financial and legal decisions. A power of attorney can be very specific or very broad.

Under  the Power of  Attorney Act, s. 1 "financial affairs" includes an adult's business and property, and the conduct of the adult's legal affairs.

An enduring power of attorney permits an adult to appoint another person to make financial and legal decisions for the adult, even if the adult later becomes mentally incapable of making decisions.  It is different from an ordinary (non-enduring) power of attorney, which ends if the person granting the power becomes mentally incapable. The laws related to the enduring power of attorney changed in 2011. There is now a specific test for mental capacity for people to execute an enduring power of attorney.

* believes undue pressure has been used to induce an adult to make, change or revoke an enduring power of attorney.   

The Public Guardian and Trustee is required to promptly follow up on the report, and may investigate the validity of the report. Depending on the investigation outcome, the Public Guardian and Trustee has a number of options. These include to

* take any action that the Public Guardian and Trustee considers necessary.

A "springing power of attorney" also grants authority over financial and legal matters.  It is distinctive because it is signed by the person granting the power but does not take effect immediately. Instead it only comes into effect once a specific event set out in the document and predetermined by the person who granted the power of attorney has occurred. The power to act on the person’s behalf has been created but it lies dormant. It is later brought to life (or springs into effect) when the specified event happens. For example, the person might specify the authority does not begin until a doctor has issued a letter issued that the person granting the power of attorney has lost capacity to make financial decisions.

A ‘Bank’ Power of Attorney is made by using forms provided by a financial institution in order to have authority over financial matters related to a specific account or transactions within that institution. In the past, older adults and family were frequently informed by bank staff that only their institution’s forms could be used. That was not correct.

A bank power of attorney form may also have a standard clause that revokes previous powers of attorney. This may undo some careful advance planning if the bank’s power of attorney form is signed.

   

As a result of changes to the law in 2011, any person granted an enduring power of attorney or other power of attorney now has specific legal duties which she or he owes to the person who granted the power of attorney. These duties existed in common law and include to:

The Power of Attorney Act also sets out who may be named as an attorney and who cannot be a witness.  For example, the potential attorney must not be someone who provides personal care or health care services to the adult for compensation, or who is an employee of a facility in which the adult resides and receives personal care or health care services.

Under a power of attorney, the attorney stands in the shoes of the person granting the power of attorney for financial and legal decisions.  In order to properly carry out the duties, she or he has the same legal rights to same legal rights to information and records as the adult for whom the attorney is acting would. The attorney also has the legal right to request information and records that relate to the financial matters and authority that has been granted to the attorney.  So for example, in the context of residential care, that would mean the bills and expenses. It would not normally include access to medical information.

Several common legal issues can arise in residential care with respect to the power of attorney (POA). These include:

In some cases a power of attorney has been obtained by an individual with improper motives from an incapable or vulnerable adult before or while the adult is living in a residential care facility.  There may be questions or concerns about the attorney misappropriating the grantor’s money or other assets.  Some people may exert undue influence, or gain the authority under suspicious circumstances including by fraud or through forgery. Disputes can also arise where one or several attorneys have acted without the knowledge or approval of the others under a joint power of attorney.

   

The capacity to make a financial decision depends on the specific decision. For example, the mental capacity of a resident to decide on what to spend her or his “comfort allowance” may be an easy threshold for many residents to meet.

In residential care, there can be considerable overlap over whether a matter is a financial decision, a personal care decision, or a health decision.  For example, whether the person will live in shared room or a private room in the facility can affect their physical health and mental state; it can affect with whom they can associate and their privacy, plus it will have financial implications. Where there are different types of decision-makers for a decision, the responses can become quite contradictory.

    

The care facility administration can ask whether the person moving to the facility has specific planning documents. They need to know this in order to know to whom they may need to contact for certain decisions, if the resident becomes incapable of making that decision. However, it is far less clear whether (or who among) the care facility staff can or should know about the details of the documents, and access them. It is also unclear whether the facility should simply be able to keep a copy as part of resident’s records. It is quite common for administration to be aware in a general sense that a planning document exists and that someone has authority, but they may not necessarily know its scope or if it is the most current resident’s document.

Many people, including staff, family and the general public are unaware of what authority a power of attorney gives. It is common for staff to be told by a person holding a power of attorney that the staff should not permit a certain person or people to visit the resident. It is also common for staff to accede to the person with the power of attorney and to permit that person to make health care decisions. Neither action is legal.  

Some persons with the power of attorney may also have authority in other kinds of situations. For example, they might also be the highest eligible person to act as a temporary substitute decision maker for health decisions if the resident has become mentally incapable of making the specific health care decision. However, that authority is separate and distinct from the authority given by the power of attorney.\

This typically shows up in two ways: (a) not providing for the older adult’s ”extra needs” and (b) as a failure to pay the care facility bills on behalf of the resident. Some of these situations occur when the adult or the attorney completely misunderstands the nature and scope of the document and their responsibility. Other situations reflect a conflict of interest, if the attorney will inherit money that is not spent on the older adult. Still other circumstances  reflect problems of the attorney’s general mismanagement, errors of judgement or where the attorney has abandoned the responsibility. Of course, there may be systematic looting of the adult's estate by previously trusted friends or relatives, which can occur without detection for a long period.

The care facility administration may bring the matter of non payment to the attention of the resident, which may cause the resident confusion and significant distress. Unfortunately in some of these “failure to pay “instances, the care facility administration may threaten the resident with eviction for non-payment. [Whether this is ever appropriate is discussed under Discharge & Eviction in the Chapter 4 on Legal Issues When Living in a Care Facility).

The Representation Agreement Act allows a person to appoint someone as their legal representative to handle financial, legal, personal care and health care decisions, if the person is unable to make them on her or his own.

Depending on the type of document, a representative may be given decision-making authority for personal care, health care, and, the routine management of financial affairs, including legal matters. That person can be almost anyone the older adult chooses, including a family member, friend, or someone else. A person cannot appoint anyone who is paid to provide them with personal or health care or who is an employee of a facility through which they receive personal or health care.

There are two types of representation agreements:

:''“An adult may authorize a representative to do any or all of the things referred to in section 9 unless the adult is incapable of understanding the nature and consequences of the proposed agreement.''

;Signing Requirements: Two witnesses are needed when the person giving the authority signs a representation agreement (unless one of the witnesses is a lawyer or notary, in which case only the lawyer’s or notary’s signature is required). There are also specific restrictions on who can be a witness.  

;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].

   

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.