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Difference between revisions of "Substitute Decision Making for Adult Guardianship (15:IV)"
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Substitute Decision Making for Adult Guardianship (15:IV) (view source)
Revision as of 00:21, 25 September 2020
, 00:21, 25 September 2020→6. Note on POAs For LSLAP Students
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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 | • Sudden confusion, short term memory problems, disorientation<br> | ||
• Signs of depression | • Signs of depression<br> | ||
• Appears worried, distressed, overwhelmed | • Appears worried, distressed, overwhelmed<br> | ||
• Signs of substance abuse | • Signs of substance abuse<br> | ||
• Inability to answer open-ended questions | • Inability to answer open-ended questions<br> | ||
Refer to BCLI Guide on Undue Influence for a full checklist at: | Refer to BCLI Guide on Undue Influence for a full checklist at: | ||
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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 will respect the client’s unique values and interests <br> | ||
• 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 | • 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<br> | ||
• 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? | • 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?<br> | ||
• 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. | • 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. <br> | ||
• 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. | • 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. <br> | ||
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. | ||
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Power of Attorney abuse is a constant concern and unfortunately a frequent occurrence. The abuse may manifest in pressure to grant a POA or misuse of funds or property under a POA. Try to meet with the client alone, or at least without the potential attorney in the room, to be certain that the client truly wishes to create a POA and grant powers to the potential attorney in question. Make sure to inquire about the relationship between the client and the proposed attorney, and be on alert for possible undue influence or fraud. Refer to BCLI Guide on Undue Influence, above, for a full checklist of considerations and what to watch for. For more information about abuse and neglect of older adults, you can also consult the following resources: | Power of Attorney abuse is a constant concern and unfortunately a frequent occurrence. The abuse may manifest in pressure to grant a POA or misuse of funds or property under a POA. Try to meet with the client alone, or at least without the potential attorney in the room, to be certain that the client truly wishes to create a POA and grant powers to the potential attorney in question. Make sure to inquire about the relationship between the client and the proposed attorney, and be on alert for possible undue influence or fraud. Refer to BCLI Guide on Undue Influence, above, for a full checklist of considerations and what to watch for. For more information about abuse and neglect of older adults, you can also consult the following resources: | ||
• BC Centre for Elder Advocacy and Support: www.bcceas.ca | • BC Centre for Elder Advocacy and Support: www.bcceas.ca <br> | ||
• Canadian Centre for Elder Law: www.bcli.org/ccel | • Canadian Centre for Elder Law: www.bcli.org/ccel <br> | ||
• Public Guardian & Trustee: www.trustee.bc.ca | • Public Guardian & Trustee: www.trustee.bc.ca <br> | ||
• Vancouver Coastal Health: Resource: www.vchreact.ca | • Vancouver Coastal Health: Resource: www.vchreact.ca <br> | ||
• Advocacy Centre for the Elderly website: www.acelaw.ca | • 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. | ||