Substitute Decision Making for Adult Guardianship (15:IV): Difference between revisions
From Clicklaw Wikibooks
Substitute Decision Making for Adult Guardianship (15:IV) (view source)
Revision as of 23:57, 10 October 2022
, 10 October 2022→6. Note on POAs For LSLAP Students
| Line 320: | Line 320: | ||
1. Is the client (mentally) capable, in the view of the clinician, of granting a POA? The presumption is that all adults are capable. The general test is the ability to understand and appreciate the meaning of what they are trying to do in each particular case. Warning signs of temporary or ongoing incapacity can include the following (bear in mind the list below is not comprehensive and the indicators below do not necessarily indicate incapacity): | 1. Is the client (mentally) capable, in the view of the clinician, of granting a POA? The presumption is that all adults are capable. The general test is the ability to understand and appreciate the meaning of what they are trying to do in each particular case. Warning signs of temporary or ongoing incapacity can include the following (bear in mind the list below is not comprehensive and the indicators below do not necessarily indicate incapacity): | ||
* Sudden confusion, short term memory problems, disorientation | |||
* Signs of depression | |||
* Appears worried, distressed, overwhelmed | |||
* Signs of substance abuse | |||
* Inability to answer open-ended questions | |||
Refer to BCLI Guide on Undue Influence for a full checklist at: | Refer to BCLI Guide on Undue Influence for a full checklist at: | ||
http://www.bcli.org/sites/default/files/undue%20influence_guide_final_cip.pdf | http://www.bcli.org/sites/default/files/undue%20influence_guide_final_cip.pdf | ||
2. Why does the client want a POA? | 2. Why does the client want a POA? | ||
3. For what purpose does the client require someone else to manage their financial affairs? | 3. For what purpose does the client require someone else to manage their financial affairs? | ||
4. Does the client need to authorize broad powers, or can powers be narrowly defined and still meet the needs of the client? | 4. Does the client need to authorize broad powers, or can powers be narrowly defined and still meet the needs of the client? | ||
5. What tasks does the attorney need to be authorized to do to meet the client’s needs? | 5. What tasks does the attorney need to be authorized to do to meet the client’s needs? | ||
6. When does the POA need to start? | 6. When does the POA need to start? | ||
7. Is it appropriate for the POA to have a built-in expiration date? | 7. Is it appropriate for the POA to have a built-in expiration date? | ||
8. Has the client thought about who they wish to appoint as attorney(s)? | 8. Has the client thought about who they wish to appoint as attorney(s)? | ||
It may be helpful for students to provide information or guidance to clients on who the client should appoint as attorney, to reduce the risk of financial abuse, based on the following considerations: | It may be helpful for students to provide information or guidance to clients on who the client should appoint as attorney, to reduce the risk of financial abuse, based on the following considerations: | ||
* Appoint someone who will respect the client’s unique values and interests | |||
* Appoint someone who is familiar with the duties and limitations of the role of attorney, or who will take the time and initiative to become educated about them | |||
* Consider who is best placed to carry out the responsibility of handling the client’s financial matters: Does the person live nearby? Is the person easy to communicate with? Does the person like to deal with finance and money, or have some training or education in this regard? | |||
* A spouse is not always the best choice – a partner could be in a situation of crisis when the older adult becomes incapable and the client should consider whether it is best for the partner to take on the additional responsibility at such a difficult time. | |||
* Appointing more than one attorney could create practical problems. For example, appointing all of the client’s children can create a situation of conflict where it may be challenging for the children to come to an agreement. Having two attorneys under a joint power of attorney can also make it harder to make decisions quickly as consultation and discussion will be required to make any decision. Nonetheless, multiple attorneys can be appropriate in some contexts. | |||
Students should confer with their Supervising Lawyer if there is any doubt that the client understands and appreciates the POA. Also note that an adult should not be required to have a POA as a condition of receiving any good or services, such as residence in an assisted living or community care facility. | Students should confer with their Supervising Lawyer if there is any doubt that the client understands and appreciates the POA. Also note that an adult should not be required to have a POA as a condition of receiving any good or services, such as residence in an assisted living or community care facility. | ||
| Line 370: | Line 359: | ||
• Advocacy Centre for the Elderly website: www.acelaw.ca <br> | • Advocacy Centre for the Elderly website: www.acelaw.ca <br> | ||
'''NOTE:''' It is possible, and even common, for an adult to appoint an attorney under the ''PAA'' (to make financial decisions) and appoint a different person as a representative, under the ''RAA'' (to make health care decisions). This commonly happens where a person who knows the personal wishes and values of the adult is adept at handling health care decisions, and a more financially astute person is chosen as attorney. | '''NOTE:''' It is possible, and even common, for an adult to appoint an attorney under the ''PAA'' (to make financial decisions) and appoint a different person as a representative, under the ''RAA'' (to make health care decisions). This commonly happens where a person who knows the personal wishes and values of the adult is adept at handling health care decisions, and a more financially astute person is chosen as attorney. | ||
== B. Representation Agreements == | == B. Representation Agreements == | ||
