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

The person granted the power of attorney can resign. This is done by letting the adult and any joint attorneys know in writing. ([[{{PAGENAME}}#References|33]]) However, if the other adult is no longer mentally capable, the attorney must also give written notice of the resignation to the adult’s spouse, near relative or, a person known to be “close friend of the adult”.([[{{PAGENAME}}#References|34]])“Close friend” here means an “adult who has a long-term, close personal relationship involving frequent personal contact with the adult”. ([[{{PAGENAME}}#References|41]]) However, it does not include anyone who receives compensation for providing personal care or health care to the adult.

An enduring power of attorney also automatically ends if the attorney is the spouse (either married or common-law) and the marriage or marriage-like relationship ends. ([[{{PAGENAME}}#References|35]]) This occurs unless the document specifically states that the power of attorney will continue to be in effect if the marriage or marriage-like relationship ends.  

* if the attorney is convicted of an offence described in the Power of Attorney Act or an offence where the grantor was the victim. ([[{{PAGENAME}}#References|36]])

* believes that the adult is (or was at the time) incapable of making an enduring power of attorney, or changing or revoking it. ([[{{PAGENAME}}#References|37]])   

* is concerned there has been fraud, abuse or neglect by the person granted the enduring power of attorney, ([[{{PAGENAME}}#References|38]])   

* believes undue pressure has been used to induce an adult to make, change or revoke an enduring power of attorney. ([[{{PAGENAME}}#References|39]])  

People can also report the attorney to the Public Guardian and Trustee if they are concerned that the attorney is incapable of acting as an attorney, or failing to comply with an enduring power of attorney or with their duties as an attorney.([[{{PAGENAME}}#References|40]])  

The Public Guardian and Trustee is required to promptly follow up on the report, and may investigate the validity of the report.([[{{PAGENAME}}#References|41]]) Depending on the investigation outcome, the Public Guardian and Trustee has a number of options. These include to

* make a report to a designated agency under section 46 of the Adult Guardianship Act;  take steps under the Patients Property Act ([[{{PAGENAME}}#References|42]]) to become a committee; or  

The BC Court of Appeal case Goodrich v. British Columbia (Registrar of Land Titles), ([[{{PAGENAME}}#References|43]])first recognized the springing power of attorney.  In 2011, a number of laws affecting adult guardianship and planning statutes were amended ([[{{PAGENAME}}#References|44]]) and now the law formally recognizes the right to create a springing power of attorney.  

In December, 2013 the Canadian Bankers Association (CBA) outlined the circumstances in which a Power of Attorney might be questioned by a bank, and the steps the bank would take to review it. ([[{{PAGENAME}}#References|45]])The CBA specifically stated that the bank’s power of attorney forms are for the customer’s convenience, and not a bank’s requirement. ([[{{PAGENAME}}#References|46]])Although this new policy directive may exist, people may still encounter many problems in trying to use their own power of attorney forms at banks when aiding older adults, including those residing in care facilities.

The CBA also noted that banks generally allow payment of bills related to the adult’s personal living expenses (e.g. nursing home bills, rent, utilities) from their assets held with the bank even where it has questions related to a power of attorney, the instructions to the Attorney, or the client’s capacity.([[{{PAGENAME}}#References|47]]) The Canadian Bankers Association further stated if an individual brings bills to the bank to be paid, banks may consider allowing payment even without a power of attorney – usually after trying to speak with the client. This can be challenging for residents in care facilities who have little if any access to the bank anymore because of their physical or mental limitations. It has been pointed out that banks may be violating federal human rights law by failing to provide services in a way that is accessible to older and disabled clients.([[{{PAGENAME}}#References|48]])  

* act within the authority given in the enduring power of attorney. ([[{{PAGENAME}}#References|49]])

The attorney has a duty to keep and produce financial records, plus copy them at the request of the adult. ([[{{PAGENAME}}#References|50]])This is an important duty to know for people acting as attorneys or in a person’s decision about who to appoint as an attorney.  

This duty contains some specific (and significant) responsibilities. An attorney must now make reasonable efforts to determine the status of an adult's property and liabilities. The attorney must keep and produce a current list of the adult's property, liabilities, accounts and other records respecting the exercise of the attorney's authority under the enduring  power of attorney. ([[{{PAGENAME}}#References|51]])In addition, the attorney must preserve all invoices, bank statements and other records necessary to create full accounts respecting the receipt or disbursement of capital or income.

People granted  the enduring power of attorney now have a specific duty when managing the adult's financial affairs to give priority to the adult’s personal and health care needs. ([[{{PAGENAME}}#References|52]])That would include paying  the care facility bills. Consequently, an attorney must work closely with the adult. The attorney needs to be aware of the adult’s financial position, the assets and liabilities, plus needs to be familiar with the adult’s estate and future health care planning.  The attorney also has a specific duty to encourage the adult's independence and involvement in any decision-making affecting the adult. ([[{{PAGENAME}}#References|53]])

* to invest the adult's property only in accordance with the British Columbia Trustee Act (unless the power of attorney states otherwise). ([[{{PAGENAME}}#References|54]])

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.([[{{PAGENAME}}#References|55]])

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.([[{{PAGENAME}}#References|56]]) 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. ([[{{PAGENAME}}#References|57]])

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. ([[{{PAGENAME}}#References|58]]) There may be questions or concerns about the attorney misappropriating the grantor’s money or other assets. ([[{{PAGENAME}}#References|59]]) 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. ([[{{PAGENAME}}#References|60]])

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. ([[{{PAGENAME}}#References|61]]) 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.

As previously noted, the person granted power of attorney has a legal duty to give priority to the person’s personal and health needs exercising the responsibility as attorney. ([[{{PAGENAME}}#References|62]]) Residents pay for care and services at the facility. In most instances, the amount of co-payment will leave the resident with a small amount for personal needs for what has traditionally been called a “comfort allowance”. This may be held in a special account in the facility or the person with the power of attorney may have control of the money.

:For subsidized beds in licensed care facilities, the amount contributed by the resident is based on their income, to a set maximum. The rates set by government create a “buffer”, (minimum disposable income allowance sometimes referred to as a “comfort allowance”). About two thirds of residents in BC care facilities depend on this amount to cover expenses beyond what the facility charges for basic care ([[{{PAGENAME}}#References|63]]).  The comfort allowance is for the personal and recreational needs of the recipient, (i.e., haircuts, personal laundry, television rental, tobacco products, or transportation to recreational activities, and wheelchair rental).

Because the person with the power of attorney has a responsibility to pay, that person may question the bills coming from the care facility. Many of the costs covered when a person is in a hospital are not covered when a person moves to a residential care facility. The person with a power of attorney may have legitimate questions over whether the item or charges are “chargeable” and “non chargeable”. ([[{{PAGENAME}}#References|64]]) [For more details, see Chapter 4 Legal Issues When Living in  Residential Care]  

It has also been noted that the person who controls the pocketbook (who has the Power of Attorney, or is the Committee of Estate) may not always see eye to eye with the individual who makes decisions about the person (e.g. Committee of Person, Representative for Personal Care). ([[{{PAGENAME}}#References|65]])This can lead to financial disputes.

In some instances, the failure to pay may be a simple oversight by the person granted the power of attorney, or reflect the person’s lack of financial management skills. ([[{{PAGENAME}}#References|66]])In other instances, it may reflect a broader problem with the person holding the power of attorney, including potential financial misuse or abuse.  

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. ([[{{PAGENAME}}#References|67]])

A section 7 representation agreements (sometimes referred to as an RA7 for Finances and RA7 for Personal and Health Care) is a limited agreement that allows the adult to name a representative to make straightforward, everyday decisions about personal care and health care treatments, as well as routine management of financial matters. The capability requirements for making a section 7 representation agreement are different than those for making other legal documents. Individuals may make this type of agreement even if they are considered incapable of making a power of attorney or a will, if they cannot make a contract or cannot make their own financial or legal decisions, health or personal decisions independently. ([[{{PAGENAME}}#References|68]])

* most major health care and minor health care,* as defined in the Health Care (Consent) and Care Facility (Admission) Act; ([[{{PAGENAME}}#References|69]])

* obtaining legal services for the adult and instructing counsel to deal with any legal proceedings on the adult's behalf, except divorce proceedings. ([[{{PAGENAME}}#References|70]])

* Is the relationship with the other characterized by trust? ([[{{PAGENAME}}#References|71]])

Generally speaking, unless the representative is the adult’s spouse, a section 7 representation agreement that covers routine payment of bills must name another person as a “monitor” to help ensure that the representative lives up to their duties. Otherwise the agreement must specifically state that a monitor is not required. ([[{{PAGENAME}}#References|72]])

A representative who is authorized to do anything referred to in section 7 (1) (b) must keep the adult's assets separate from the representative's assets. ([[{{PAGENAME}}#References|73]])  

;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. ([[{{PAGENAME}}#References|74]])

* to keep proper records including creating and maintaining a list of the person’s property and liabilities. ([[{{PAGENAME}}#References|75]])

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. ([[{{PAGENAME}}#References|76]])

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). ([[{{PAGENAME}}#References|77]])

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.([[{{PAGENAME}}#References|78]])

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. ([[{{PAGENAME}}#References|79]]) 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. ([[{{PAGENAME}}#References|80]]) Two major changes have been noted:

Having a committee appointed has a major effect on existing legal documents it terminates a power of attorney, including an enduring power of attorney. ([[{{PAGENAME}}#References|81]]) It usually terminates a representation agreement as well.

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.([[{{PAGENAME}}#References|82]]) 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. ([[{{PAGENAME}}#References|83]]) 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:

:(b) a temporary substitute decision-making will not be chosen to make decisions on the adult’s behalf for any matter that is covered in the advance directive.([[{{PAGENAME}}#References|84]])  

*the instructions are illegal. ([[{{PAGENAME}}#References|85]])   

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. ([[{{PAGENAME}}#References|86]]) 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).

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). ([[{{PAGENAME}}#References|87]]) At a minimum, the advance directive must set out what treatment is being refused and in what circumstances.  

* are pre-made, so the decision is not based on complete information. ([[{{PAGENAME}}#References|88]])   

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. ([[{{PAGENAME}}#References|89]])