NAVIGATING AROUND THE ISSUES OF CAPACITY

NAVIGATING AROUND THE ISSUES OF CAPACITY 14 th ANNUAL ESTATES & TRUSTS SEMINAR presented by: The Hamilton Law Association February 11, 2016 Prepared by: Jane Meadus Advocacy Centre for the Elderly 2 Carlton Street, Suite 701 Toronto, Ontario, M5B 1J3

Key Legislation Selected Issues in Capacity Law for Lawyers Jane E. Meadus Barrister & Solicitor Institutional Advocate Advocacy Centre for the Elderly Substitute Decisions Act Health Care Consent Act Mental Health Act Personal Health Information Protection Act Statutory Powers Procedure Act Ontario Human Rights Code Accessibility for Ontarians with Disability Act Rules of Civil Procedure Rules of Professional Conduct Charter February 11, 2016 Advocacy Centre for the Elderly 2 Basic Principles Presumption of Capacity Capacity is issue specific Capacity can fluctuate over time Capacity is not a diagnosis or a test score Being capable is not the same as making good decisions Capacity ABILITY to understand information relevant for making a decision AND ABILITY to appreciate the consequence of a decision or lack thereof See SDA s. 6 & 45; Starson v. Swayze 2003 SCC 32 [2003] 1 SCR 722. February 11, 2016 Advocacy Centre for the Elderly 3 February 11, 2016 Advocacy Centre for the Elderly 4 Issues Accommodation re communication Family/purported SDM interference Ability to give/take instructions Ensuring representing client Instruction-based advocacy Rules of Professional Conduct Client Under a Disability 2.02 (6) When a client's ability to make decisions is impaired because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal lawyer and client relationship. February 11, 2016 Advocacy Centre for the Elderly 5 February 11, 2016 Advocacy Centre for the Elderly 6

Rules of Professional Conduct Commentary: A lawyer with a client under a disability should appreciate that if the disability of the client is such that the client no longer has the legal capacity to manage his or her legal affairs, the lawyer may need to take steps to have a lawfully authorized representative appointed, for example, a litigation guardian, or to obtain the assistance of the Office of the Public Guardian and Trustee or the Office of the Children s Lawyer to protect the interests of the client. In any event, the lawyer has an ethical obligation to ensure that the client s interests are not abandoned. Rules of Professional Conduct Legal Services Under a Limited Scope Retainer 2.02 (6.1) Before providing legal services under a limited scope retainer, a lawyer shall advise the client honestly and candidly about the nature, extent and scope of the services that the lawyer can provide, and, where appropriate, whether the services can be provided within the financial means of the client. (6.2) When providing legal services under a limited scope retainer, a lawyer shall confirm the services in writing and give the client a copy of the written document when practicable to do so. February 11, 2016 Advocacy Centre for the Elderly 7 February 11, 2016 Advocacy Centre for the Elderly 8 Rules of Professional Conduct Advocacy 4.01 (1) When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect. Commentary: The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. Mental Capacity Mental capacity is a socio-legal construct and its meaning varies over time and across jurisdictions Assessment/evaluation refers to a legal assessment not a clinical assessment Clinical assessments underlie diagnosis, treatment recommendations and identify or mobilize social supports Legal assessments remove from the person the right to make autonomous decisions in specified areas February 11, 2016 Advocacy Centre for the Elderly 9 February 11, 2016 Advocacy Centre for the Elderly 10 Mental Capacity Mental Capacity Capacity is a cognitive test - not a functional test. Indicators are: Ability to understand (factual knowledge + problem solving ability) Ability to appreciate (realistic appraisal of outcome + justification of choice) NOT actual understanding or appreciating NOT best interest test Not the score on the MMSE, MOCA or any other test Not a diagnosis February 11, 2016 Advocacy Centre for the Elderly 11 February 11, 2016 Advocacy Centre for the Elderly 12

Who Assesses Capacity Sometimes defined by statute SDA qualified capacity assessors for capacity to manage property to trigger a statutory guardianship, health practitioners for treatment, evaluators for capacity for admission to long-term care home Sometimes in common law (i.e. contracts) Sometimes a variety of persons can provide opinions or evidence as to incapacity (i.e. defense assessments) SEE CHART February 11, 2016 Advocacy Centre for the Elderly 13 Capacity Assessors Capacity Assessors are NOT required to determine capacity under the HCCA They have a limited role under the SDA Determine capacity to manage property where there is no CPOAP and the person is NOT an in-patient in a psychiatric facility Determine capacity where required to trigger either a CPOAP or POAPC where required Assess capacity to make or revoke a Ulysses Agreement type POAPC Provide assessments to court under guardianship applications February 11, 2016 Advocacy Centre for the Elderly 14 Capacity Assessors (cont d.) If none of these then the Capacity Assessor s opinion is just that Capacity assessors receive special training Must have insurance Charge a fee that is paid by the requestor If requested may provide opinion on other areas of capacity but are not determinative Granting and Revoking of Continuing Powers of Attorney for Property Can be incapable of managing property BUT be capable of granting or revoking CPOAP Both CPOAP and revocation must be conducted pursuant to the SDA February 11, 2016 Advocacy Centre for the Elderly 15 February 11, 2016 Advocacy Centre for the Elderly 16 Continuing Power Of Attorney for Property may name more than one attorney to act jointly or jointly and severally may contain conditions and restrictions may contain instructions in respect to decisions that attorney is authorized to make need not be on any particular form Incapacity to Manage Property SDA s. 6 a person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. February 11, 2016 Advocacy Centre for the Elderly 17 February 11, 2016 Advocacy Centre for the Elderly 18

Who is SDM for Property if the Person is Not Mentally Capable of Managing Property? Guardian of Property appointed by the Court Attorney(s) named in a CPOAP Statutory guardian if the person is found incapable by either a capacity assessor under the SDA or a physician pursuant to the MHA PGT becomes statutory guardian automatically Certain family members can apply to take-over from PGT and become statutory guardian Cannot get a statutory guardian if there is an attorney for property When Continuing Power Of Attorney For Property Comes Into Effect SDA s. 9 at time of execution unless states otherwise OR when grantor becomes incapable of managing property if POA specifies February 11, 2016 Advocacy Centre for the Elderly 19 February 11, 2016 Advocacy Centre for the Elderly 20 Authority to Use CPOAP While Person Still Capable If valid upon signature, attorney has authority to make decisions while the person is capable Person may want this because they are unavailable (on vacation), unable physically to do tasks (housebound, living in a LTCH) Want expert advice (rich people!) Method For Determining Incapacity To Manage Property If POA Not In Effect Until Incapacity SDA s. 9(3) by method provided in POA. If determination required but method not specified, after assessment by capacity assessor and attorney notified. OR on issue of certificate of incapacity under Mental Health Act and attorney notified. February 11, 2016 Advocacy Centre for the Elderly 21 February 11, 2016 Advocacy Centre for the Elderly 22 When Continuing Power Of Attorney For Property Is Terminated SDA s.12 1. When attorney dies, becomes incapable of managing property, or resigns unless POA provides for more than one attorney with authority to continue to act or provides for substitute attorney. 2. On appointment of Guardian of Property by Court. 3. When grantor executes new Power of Attorney for Property unless documents provides for multiple powers of attorney for property (Note: banking POAs may revoke general ones) 4. When POA revoked. 5. When grantor dies What are Property Decisions? Banking Buying a house Managing money from day to day Paying Bills Investing February 11, 2016 Advocacy Centre for the Elderly 23 February 11, 2016 Advocacy Centre for the Elderly 24

Clothing Hygiene Nutrition Safety Health Shelter What are Personal Care Decisions? What are Health Care Decisions? Decisions under the HCCA Treatment Admission to long-term care homes Personal assistance services in a long-term care home ONLY February 11, 2016 Advocacy Centre for the Elderly 25 February 11, 2016 Advocacy Centre for the Elderly 26 Personal Care Decisions If the person is capable only they can make personal care decisions Power of attorney for personal care does not come into effect until the person is INCAPABLE Up to the capable person to decide how they will make decision based upon the information provided, coin toss, advice of third party They CANNOT assign their authority to someone else February 11, 2016 Advocacy Centre for the Elderly 27 Incapacity For Personal Care SDA s. 45- a person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. February 11, 2016 Advocacy Centre for the Elderly 28 Who Are SDMs? Property: Attorney in Continuing POA Property Statutory Guardian Guardian of Property Trustee under OAS/CPP/OW/ODSP legislation Personal Care: Attorney in POA Personal Care, Guardian of the Person Treatment, Admission or Personal Assistant Services under the HCCA: Hierarchy List in s. 20 of the HCCA Who Is the SDM For Personal Care If Person Is Not Mentally Capable? For decisions under HCCA treatment, admission, personal assistant services - person highest ranking in hierarchy that meets criteria to be an SDM For non-hcca issues, Court-appointed Guardian, attorney under POAPC In some cases there may have no one to make the decision February 11, 2016 Advocacy Centre for the Elderly 29 February 11, 2016 Advocacy Centre for the Elderly 30

Power Of Attorney For Personal Care SDA s. 46 may give Power of Attorney for Personal Care authorizing attorney to make personal care decisions on his or her behalf Persons who provide health care for compensation or residential, social, training or support services to grantor for compensation may not act as attorney unless spouse, partner or relative Power Of Attorney For Personal Care may name more than one attorney to act jointly or jointly and severally may contain conditions and restrictions may contain instructions in respect to decisions that attorney is authorized to make need not be on any particular form February 11, 2016 Advocacy Centre for the Elderly 31 February 11, 2016 Advocacy Centre for the Elderly 32 Capacity To Give or Revoke a Power Of Attorney For Personal Care SDA s. 47(1) (a) must have ability to understand that the proposed attorney has a genuine concern for person s welfare and (b) appreciates the person may need the assistance of an attorney for personal care (c) If including instructions in POAPC, must have the capacity at time of granting to make that decision Capacity To Revoke A Power Of Attorney For Personal Care SDA s. 47(2) Capable to revoke if capable to give POAPC February 11, 2016 Advocacy Centre for the Elderly 33 February 11, 2016 Advocacy Centre for the Elderly 34 When Power Of Attorney for Personal Care Comes Into Effect SDA s. 49 Comes into effect in two circumstances: (a) if HCCA applies to the decision (treatment, admission, personal assistance plans) and that act authorizes attorney under POAPC to make decision (b) if HCCA not apply, when attorney has reasonable grounds to believe that grantor is incapable to make the decision, SUBJECT to any condition in the POAPC requiring confirmation of incapacity for personal care. February 11, 2016 Advocacy Centre for the Elderly 35 Confirmation Of Incapacity Where POAPC Contains a Condition SDA s. 49(2) Only relates to Non-HCCA decisions (a) by method specified in the POAPC (i.e. by doctor, nurse, psychologist, capacity assessor, or your Aunt Martha); OR (b) if no method specified in the POAPC, then by notice to the attorney in the prescribed form by a Capacity Assessor stating that an assessment has been done and the person has been found to be incapable of personal care. February 11, 2016 Advocacy Centre for the Elderly 36

Termination of POAPC HCCA - Basic Principles SDA s.53 (a) when attorney dies, becomes incapable for personal care, resigns unless another attorney authorized to act or substitute attorney in POAPC. (b) when court appoints Guardian of the Person (c) when grantor executes new POAPC UNLESS POAPC provides for multiple POAPCs (d) when POAPC revoked Consent/refusal of consent to treatment/placement must be obtained from person before treatment is administered, before placement occurs If the person is not mentally capable in respect to treatment/placement as determined by the HP/evaluator, consent must be obtained from the patient s SDM for the consent/refusal of consent Incapable person always has SDM for treatment/placement Health Practitioners are not the decision makers February 11, 2016 Advocacy Centre for the Elderly 37 February 11, 2016 Advocacy Centre for the Elderly 38 Presumption of Capacity HCCA s.4 a person presumed to be capable for treatment, admission to care facilities and personal assistance services. EXCEPTION the person obtaining consent is entitled to rely on presumption unless he or she has reasonable grounds to believe the other person is incapable in respect to treatment, admission to care facilities, personal assistance services as case may be Definition of Capacity Under the HCCA HCCA s.4 - a person is able to understand the information that is relevant to making a decision about the treatment, admission, or personal assistance service as the case may be and able to appreciate the reasonable foreseeable consequences of a decision or lack of decision. February 11, 2016 Advocacy Centre for the Elderly 39 February 11, 2016 Advocacy Centre for the Elderly 40 Property SDA- all property (includes real property, income, anything of a financial nature) Mental Health Act refers back to the SDA if person is inpatient in a psychiatric facility and assessed as not capable of managing property SDA, HCCA & LTCHA Connection Personal Care SDA all health, nutrition, safety, hygiene, shelter, clothing HCCA treatment, admission to LTCH and personal assistance services in LTCH ONLY LTCHA informed consent to treatment Capacity to Instruct Counsel Does not have to understand minute of case Need to have a basic understanding of: Role of client/solicitor What retainer is Understand what they have asked the lawyer to do and why Be able to understand and process information, advice & options presented to them Appreciate pros/cons/potential consequences of various options February 11, 2016 Advocacy Centre for the Elderly 41 February 11, 2016 Advocacy Centre for the Elderly 42

Authority Can SDMs restrict visitors? Can SDMs restrain or detain? Can SDMs consent to and/or prevent sexual activity? If Client Unable to Instruct Counsel Is there someone who already has authority? Will depend on the type of case, rights being upheld Cases before CCB deemed capacity Do they need a litigation guardian? Should amicus curiae be appointed? February 11, 2016 Advocacy Centre for the Elderly 43 February 11, 2016 Advocacy Centre for the Elderly 44 Accommodation How can you accommodate? What does the client need to know? How can you provide information in a way that the client understands? Have special equipment where necessary Be prepared for clients who may behave differently than your normal clients Time considerations may require more time, breaks, meeting at specific times in day Ensuring You are Representing Your Client You must take instructions from your client You owe the client the same duty as any other client You cannot keep matters secret from your client Ensure that you provide copies of documents to client, keep them informed February 11, 2016 Advocacy Centre for the Elderly 45 February 11, 2016 Advocacy Centre for the Elderly 46 Family/SDM Interference Just because a person has an SDM does NOT mean they cannot instruct you Family/SDM may attempt to assert their authority when they have none Family/SDM may question your ability to represent your client Family/SDM may try to interfere/instruct Ability to Take Instructions Can you understand the instructions of the client? Do you have to do anything the client asks? Your duty to provide information in a manner that your client understands February 11, 2016 Advocacy Centre for the Elderly 47 February 11, 2016 Advocacy Centre for the Elderly 48

Ability to Give Instructions Can the client give coherent, consistent instructions? Does the client need some type of accommodation to assist them to give instructions? Are there others who may be able to assist the client in pursuing case without interfering with instructions/trying to give instructions themselves? Instruction Based Advocacy Must take instructions from client If client cannot/will not give instructions, you cannot act except as amicus curiae You cannot take instructions from a third party unless they have some type of legal authority Your job is not to act in the best interest of the client February 11, 2016 Advocacy Centre for the Elderly 49 February 11, 2016 Advocacy Centre for the Elderly 50 Court/Tribunal Accommodation Courts and tribunals are also required to accommodate client Advise court/tribunal ahead of time if accommodations are required, such as interpreters, breaks, special equipment, etc. Adjournments may be required due to disability Litigation Guardian Rules of Civil Procedure Rule 7 Guardian, Attorney Court appointed Public Guardian & Trustee SPPA no appointment section Tribunals are accommodating by appointing where necessary similar to Rule 7 SPPA s. 8 Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto. February 11, 2016 Advocacy Centre for the Elderly 51 February 11, 2016 Advocacy Centre for the Elderly 52 Amicus Curiae More and more courts/tribunals are appointed amicus curiae where parties are unwilling/unable to act May be an unrepresented client who court/tribunal believes requires assistance May be person who is party but unable to instruct What Can You Do? Are you comfortable with taking instructions? Take detailed notes Audio/video record meetings/telephone calls (with client consent) Have someone meet with you and client February 11, 2016 Advocacy Centre for the Elderly 53 February 11, 2016 Advocacy Centre for the Elderly 54

Materials - ACE Available from ACE www.acelaw.ca including: Who Assesses Capacity Under What Circumstances, April 2013 The Health Care Consent Act and Substitute Decisions Act: 25 Common Misconceptions, November 2008 Tip Sheet on Health Care Consent and Advance Care Planning, September 2013 The Legal Framework of Decision Capacity February 11, 2016 Advocacy Centre for the Elderly 55 Materials - ARCH All available on their website www.archdisabilitylaw.ca Notes on Capacity to Instruct Counsel, Ed Montigny Addressing the Capacity of Parties Before Ontario s Administrative Tribunals: A Practical Guide for Ontario Lawyers and Paralegals, October 2009 ARCH Disability Law Primer, December 2013 Addressing the Capacity of Parties Before Ontario s Administrative Tribunals: Promoting Autonomy and Fairness, October 2009 February 11, 2016 Advocacy Centre for the Elderly 56 ADVOCACY CENTRE FOR THE ELDERLY Jane E. Meadus meadusj@lao.on.ca 2 Carlton Street, Suite 701 Toronto, ON M5B 1J3 Phone: 416-598-2656 Fax: 416-598-7924 www.acelaw.ca February 11, 2016 Advocacy Centre for the Elderly 57

Who Assesses Capacity Under What Circumstances? Judith A. Wahl B.A., LL.B. 1. CONTRACTS PROPERTY WHO ASSESSES CAPACITY? To make a contract Parties to the contract (common law) 2. CONTINUING POWER OF ATTORNEY FOR PROPERTY (CPOAP) To make a CPOAP To activate a CPOAP To activate the CPOAP if it contains a clause that it is not to come into effect until incapacity 3. STATUTORY GUARDIANSHIP Person assisting person to make the document No assessment required - CPOAP is activated on signature unless it states otherwise Person/Professional named in the CPOAP to determine incapacity - If nobody or no class of persons is named, capacity is assessed by a capacity assessor as defined by the Substitute Decisions Act (see definition below) NOTE: The Mental Health Act regime is only used if the patient is an inpatient in a psychiatric facility in order to receive care, observation, or treatment for a psychiatric disorder. This process does NOT apply to elderly patients in hospitals even if the hospital is defined as a psychiatric facility under the Mental Health Act unless he or she is deemed to be a psychiatric patient for the purpose of care, observation or treatment of a psychiatric disorder. Psychiatric Inpatient - For property management on admission as an inpatient for care, observation or treatment for a mental health issue Psychiatric Inpatient - For property management on discharge from a psychiatric facility Person who is any place other than a psychiatric facility (e.g., home, hospital, longterm care facility) Physician (Mental Health Act, s.54 and Substitute Decisions Act, s.15) Physician (Mental Health Act, s.57) Capacity Assessor (Substitute Decisions Act, s.16) Advocacy Centre for the Elderly April 2013 1

4. COURT ORDERED GUARDIANSHIP OF PROPERTY Summary application (application to court that does not require an appearance before a Judge) Full hearing before a Judge Capacity Assessor and a person who knows the alleged incapable person (Substitute Decisions Act) Capacity Assessors, other health professionals, others that know the alleged incapable person (Substitute Decisions Act) PERSONAL CARE 1. POWER OF ATTORNEY FOR PERSONAL CARE (POAPC) To make a POAPC To activate POAPC for substitute decisionmaker (SDM) to make treatment decisions To activate POAPC for SDM to make decisions for admission to a long-term care home To activate POAPC for SDM to make decisions for personal assistance services in a long-term care home To activate POAPC for non-health care personal decisions where POAPC does not require an assessment before activation To activate POPAC for non-health care personal care decisions where POAPC specifies a method of assessment To activate POAPC where POAPC silent as to method preferred but an assessment is required before activation 2. HEALTH CARE CONSENT Treatment Admission to a long-term care home Personal assistance services in a long-term care home WHO ASSESSES CAPACITY? Person assisting person to make the document (common law) Health professional proposing treatment (Health Care Consent Act) Evaluator (see definition below) Evaluator Attorney named in the POAPC Person/class of persons specified in the document to do the assessment Capacity Assessor (see definition below) Health practitioner offering the treatment Evaluator Evaluator Advocacy Centre for the Elderly April 2013 2

Section 2(1) of the Health Care Consent Act states that an "evaluator" means, in the circumstances prescribed by the regulations, (a) a member of the College of Audiologists and Speech-Language Pathologists of Ontario, (b) a member of the College of Dieticians of Ontario, (c) a member of the College of Nurses of Ontario, (d) a member of the College of Occupational Therapists of Ontario, (e) a member of the College of Physicians and Surgeons of Ontario, (f) a member of the College of Physiotherapists of Ontario, (g) a member of the College of Psychologists of Ontario, or (h) a member of a category of persons prescribed by the regulations as evaluators; In addition to the various health practitioners listed in this definition, the Health Care Consent Act, Regulation 104/96 states that social workers are also considered to be evaluators. The term "social worker" is defined as a member of the Ontario College of Social Workers and Social Service Workers who holds a certificate of registration for social work. "Capacity assessor" is defined in the Substitute Decisions Act, Regulation 460/05. It states: 2 (1) A person is qualified to do assessments of capacity if he or she, (a) satisfies one of the conditions set out in subsection (2); (b) has successfully completed the qualifying course for assessors described in section 4; (c) complies with section 5 (continuing education courses); (d) complies with section 6 (minimum annual number of assessments); and (e) is covered by professional liability insurance of not less than $1,000,000, in respect of assessments of capacity, or belongs to an association that provides protection against professional liability, in respect of assessments of capacity, in an amount not less than $1,000,000. (2) The following are the conditions mentioned in clause (1) (a): 1. Being a member of the College of Physicians and Surgeons of Ontario. 2. Being a member of the College of Psychologists of Ontario. 3. Being a member of the Ontario College of Social Workers and Social Service Workers and holding a certificate of registration for social work. 4. Being a member of the College of Occupational Therapists of Ontario. 5. Being a member of the College of Nurses of Ontario and holding a general certificate of registration as a registered nurse or an extended certificate of registration as a registered nurse. (3) The requirement that the person hold a general certificate of registration as a registered nurse or an extended certificate of registration as a registered nurse, as set out in paragraph 5 of subsection (2), does not apply to a member of the College of Nurses of Ontario who, on November 30, 2005, is qualified to do assessments of capacity under Ontario Regulation 293/96 (Capacity Assessment) made under the Act. (4) Clause (1) (b) does not apply to a person who, on November 30, 2005, is qualified to do assessments of capacity under Ontario Regulation 293/96 (Capacity Assessment) made under the Act. Advocacy Centre for the Elderly April 2013 3

25 COMMON MISCONCEPTIONS ABOUT THE SUBSTITUTE DECISIONS ACT AND HEALTH CARE CONSENT ACT INTRODUCTION By: Judith Wahl, LL.B. Executive Director This paper focuses on common misconceptions or misunderstandings about the Substitute Decisions Act (SDA) and the Health Care Consent Act (HCCA). All of these misconceptions have been raised by health professionals, community workers, and seniors and their families at education sessions presented by the Advocacy Centre for the Elderly (ACE) and in the course of representation of clients by ACE staff. This paper is an updated version of a paper that appears in A Practical Guide to Mental Health, Capacity, and Consent Law of Ontario edited by Dr. Hy Bloom and Michael Bay. COMMON MISCONCEPTIONS CAPACITY 1. If a person is of an advanced age or has a physical or mental disability, then that person is presumed to be incapable. NO. THIS IS NOT TRUE. Everyone is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services (HCCA, s.4(2)). The definition of capacity does not make exceptions for age, physical disability or mental disability. The definition of capacity in the SDA and HCCA is a LEGAL DEFINITION, not a clinical definition, and is not based on a diagnosis. Just because someone has a particular health condition, disease, or even mental disorder does not mean that he or she is necessarily mentally incapable. This is similar to the SDA where the person may be older or mentally ill and may still be capable to make some or all decisions in respect to property and their person. The key to the legal test for capacity is whether the person understands the information that is relevant to making a decision and is able to appreciate the reasonably foreseeable consequences of the decision or lack of the decision (HCCA, s.4(1)). A person who is very old may, and most often does, have this capacity. A person with a physical disability, even if that physical disability makes communication difficult, is likely to have this mental capacity. Even a person who has been diagnosed as being mentally ill may still have capacity to make particular property, personal, treatment, admission and personal assistance service decisions. Advocacy Centre for the Elderly Updated July 2010 1

2. If a health practitioner believes that a person is not capable in respect to treatment, he or she must get a second opinion about that person's capacity from a psychiatrist or special "capacity assessor". THIS IS NOT TRUE. Section 10 of the HCCA makes it clear that the health practitioner proposing the treatment must decide whether the person is mentally capable to consent to the particular treatment proposed. If the health practitioner wants to get a second opinion, it is open to him or her to do so but this is not a requirement. The health practitioner is deemed to be the "expert" in determining capacity as defined by the HCCA in respect to treatment within his or her own area of practice and expertise. 3. As special "capacity assessors" were created in the SDA, health practitioners who are not qualified as "capacity assessors" can no longer do any assessments of mental capacity. THIS IS NOT TRUE. Health practitioners who know how to do capacity assessments may continue to do these assessments, even if not qualified as a "capacity assessor" except in those circumstances where the legislation requires that the assessment be done by a "capacity assessor". Ontario Regulation 460/05 states that: 2(1) A person is qualified to do assessments of capacity if he or she, (a) satisfies one of the conditions set out in subsection (2); (b) has successfully completed the qualifying course for assessors described in section 4; (c) complies with section 5 (continuing education courses); (d) complies with section 6 (minimum annual number of assessments); and (e) is covered by professional liability insurance of not less than $1,000,000, in respect of assessments of capacity, or belongs to an association that provides protection against professional liability, in respect of assessments of capacity, in an amount not less than $1,000,000. (2) The following are the conditions mentioned in clause (1)(a): 1. Being a member of the College of Physicians and Surgeons of Ontario. 2. Being a member of the College of Psychologists of Ontario. 3. Being a member of the Ontario College of Social Workers and Social Service Workers and holding a certificate of registration for social work. 4. Being a member of the College of Occupational Therapists of Ontario. 5. Being a member of the College of Nurses of Ontario and holding a general certificate of registration as a registered nurse or an extended certificate of registration as a registered nurse. (3) The requirement that the person hold a general certificate of registration as a registered nurse or an extended certificate of registration as a registered nurse, as set out in paragraph 5 of subsection (2), does not apply to a member of the College of Nurses of Ontario who, on November 30, 2005, is qualified to do Advocacy Centre for the Elderly Updated July 2010 2

assessments of capacity under Ontario Regulation 293/96 (Capacity Assessment) made under the Act. (4) Clause (1) (b) does not apply to a person who, on November 30, 2005, is qualified to do assessments of capacity under Ontario Regulation 293/96 (Capacity Assessment) made under the Act. This regulation defines what is called a capacity assessor in the legislation. The persons acting as assessors as so defined are required to perform capacity assessments in accordance with the Guidelines for Conducting Assessments of Capacity established by the Attorney General. The most recent version is dated May 5, 2005 and it can be found on the internet at http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-06/guide-0505.pdf. Two of the reasons the classification of "assessor" was created was to improve the quality of mental capacity assessments and to make training available for health professionals and others to help them do better capacity assessments. Capacity assessors are required to be used for limited purposes under the SDA (e.g., assessment for statutory guardianship). However, for assessments of capacity for other purposes under the SDA, other persons, including health professionals who are not qualified as "capacity assessors", may assess capacity. For example, a grantor of a power of attorney for personal care (POAPC) may specify in that document that before his attorney may act as his personal decision maker under the authority granted in the POAPC, that the grantor's incapacity for personal decisions must first be "confirmed". The grantor may indicate that he wants his incapacity confirmed by a particular health professional or class of health professionals or even by, for example, his Aunt Martha. He may also choose to direct that a capacity assessor must be used. This is his choice. The confirmation of incapacity does not need to be done by a capacity assessor. If no method is specified, then the grantor who requires that incapacity be confirmed before the POAPC is activated will be assessed by a capacity assessor as stipulated in section 49(2) of the SDA. Under the HCCA, health professionals assess capacity of the person to whom they are proposing treatment (HCCA, s.10). A special class of health professionals, called "evaluators", assess the mental capacity of persons for the purpose of decisions for admission to care facilities (i.e., long-term care homes) and for personal assistance services. An "evaluator" is defined as a member of the College of Audiologists and Speech-Language Pathologists of Ontario, College of Nurses of Ontario, College of Occupational Therapists of Ontario, College of Physicians and Surgeons of Ontario, College of Psychologists of Ontario, or a member of a category of persons as prescribed by the Regulations (HCCA, s.2). Regulation 104/96 made under the HCCA adds social workers to this list. A "social worker" is Advocacy Centre for the Elderly Updated July 2010 3

defined as a member of the Ontario College of Social Workers and Social Service Workers who holds a certificate of registration for social work. Note that the assessment of capacity by an evaluator is an assessment of mental capacity in accordance with the legal definition of capacity and NOT a functional or clinical assessment. Although some of the evaluators may also do a functional assessment of a person for the purpose of admission to a long term care home, this is NOT the same assessment as is done for the purposes of the HCCA. While a person may be assessed as "needing" or being likely to benefit from admission to a long term care facility as he or she is having difficulty coping at home or in their present accommodation, either because of physical or mental issues, that person may be mentally capable in respect to the admission decision. The two assessments are different although the same person may do them. 4. Due to the existence of the HCCA and the SDA, physicians may not give opinions in respect to capacity for the purpose of the Old Age Security Act or the Canada Pension Plan Act. THIS IS NOT TRUE. Human Resources Development Canada says that a Certificate of Incapacity (or Certificate of Incapability), a special form created by the Income Securities Branch, be completed to appoint a trustee to manage an incapable person's Old Age Security (OAS) and Canada Pension Plan (CPP) pension cheques. The OAS and CPP legislation does not specify that a particular health professional must perform the assessment of capacity. The legislation only requires that the evidence of incapacity must satisfy Human Resources Development Canada. This was done to accommodate people in communities in all regions of Canada, including the far north and isolated areas in every province in which health professionals may not be easily accessible. The Certificate of Incapacity is often completed by a health practitioner (e.g., physician, psychologist or nurse) but it could be completed by an engineer, a teacher, or a religious leader if a health professional is not available. The HCCA and SDA did not affect the Old Age Security Act or the Canada Pension Plan Act and in particular did not remove the opportunity for a health practitioner to give an opinion in a Certificate of Incapacity about the capacity of a person to handle their finances. 5. If a person has been "assessed" by a health professional as being mentally incapable for some purpose, then he or she is mentally incapable for all purposes. THIS IS NOT TRUE. If a person has been assessed as being mentally incapable for some purposes, that same person may still be capable for other purposes. Remember that capacity is issue specific. It relates to a particular task at hand. It is not uncommon to find that somebody is not capable with respect to finances, but still retains capacity Advocacy Centre for the Elderly Updated July 2010 4

with respect to treatment, admission to long-term care, personal assistance services or other personal decisions. In other words, a person may be incapable in respect of one treatment, but still be capable in respect of other treatments (HCCA, s.15). Even if incapable for a treatment at one time, that same person may become capable again (HCCA, s.15). In that case, the person's decisions in respect to treatment must be followed even if a substitute decision-maker (SDM) had previously given or refused consent on behalf of that person. Health practitioners should not make assumptions about capacity based on previous assessments. One health practitioner may disagree with an assessment of capacity done by another health practitioner. It is the responsibility of the health practitioner proposing the treatment to make the decision in respect to the person's capacity in respect to the treatment (HCCA, s.10). Although the health practitioner proposing the treatment must make the decision about a person's capacity in respect to treatment, he or she may rely on another health practitioner's assessment of capacity. For example, in some cases, one health practitioner may wish to get a second opinion or a facility policy, rather than law, may require that the staff consult with particular health practitioners who have expertise in assessing mental capacity; however, the health practitioner who relies on the opinion of another health practitioner is still responsible for that assessment of capacity if he or she relies upon it. 6. If a resident is in a long-term care home or a patient in a psychiatric facility, then it can be presumed that the person is incapable in respect to health decisions. THIS IS NOT TRUE. The place where a person resides or is temporarily living does not determine whether they are capable or incapable in respect to some or all decisions they are making. Just because a person has consented to move to a long-term care home and requires a variety of care services and treatments, there is no automatic implied consent to the treatment. Proper informed consent to the treatments delivered to that person in the long-term care home must be obtained from the resident, if he or she is mentally capable for this purpose, or from the proper SDM if the resident is not mentally capable. Even if a person has been treated as though he was incapable in a long-term care home and then that same person becomes a patient at a hospital, it is up to the health practitioner providing that person with treatment at the hospital to reach her or his own opinion as to whether that person is capable or not. Although section 12 of the HCCA says a health practitioner is entitled to presume that consent to a treatment includes consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment as a result of the change of the setting in which it is administered, this does not mean that the health practitioner providing treatment in Advocacy Centre for the Elderly Updated July 2010 5

the new setting (i.e. the hospital) may not conclude that the person is now capable, although previously determined to be incapable. Section 16 of the HCCA is clear that if, after consent to a treatment is given or refused on a person's behalf in accordance with the HCCA, and the health practitioner is of the opinion that the person is now capable with respect to the same treatment, the person's own decision to give or refuse consent to the treatment governs. Therefore, even if consent was previously given by a SDM, if the health practitioner believes that the person is now capable, the health practitioner should turn to the person for the consent or refusal of consent to treatment when the treatment is delivered. 7. The presumption of capacity in the HCCA means that if a person does not object to the treatment (or admission to a care facility or consent to a personal assistance service), then he or she is capable in respect to that particular decision. THIS IS NOT TRUE. The presumption of capacity means that a person is presumed to be mentally capable with respect to treatment, admission to a care facility, and personal assistance services (HCCA, s.4(2)). This presumption is intended to give the benefit of the doubt to the individual, to respect an individual's right to control his or her own life and to honour that person's power over decisions that are being made with respect to his or her own person. What does it mean to be "mentally capable"? "Capacity" under section 4 of the HCCA means that the person "is able to understand the information that is relevant to making a decision about the treatment, admission, or personal assistance services, as the case may be, and is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision". Capacity focuses on both the ability to understand and the ability to appreciate the consequences of a decision or lack of decision. This is a two-part test. A person is not capable if he or she fails either part of the test. The first branch of the test is a cognitive test. A person must have the cognitive ability to process, retain and understand the relevant information. The fact that a person is passive does not mean that he or she understands and appreciates the decision that is being made. A lack of response from a patient does not mean that the health practitioner may presume that the person is capable. Likewise, the passivity does not mean that the person is incapable. All it means is that he or she is PASSIVE! The second branch of the test includes two elements. First, the person must be able to recognize that he or she displays a certain kind of behaviour or physical condition. Second, the person must be able to appreciate the consequences of treatment or nontreatment for that behaviour or physical condition. Advocacy Centre for the Elderly Updated July 2010 6

The legislation and the case law emphasizes that the health practitioner must look at the individual who is in front of her from whom he or she is seeking a decision and evaluate that person's ability to understand and appreciate the particular decision that is at hand. The presumption is that a person does "understand and appreciate" however if the health practitioner has reason to believe that that person is not capable, then the health practitioner should advise the individual of the finding of incapacity and right of review, and turn to the proper SDM for the consent or refusal of consent to treatment. Please see Misconception #21 for more details about a health practitioner s duty to provide information of the finding of incapacity and the right of review to a person believed to be incapable. 8. There is no need to inform a person that they are going to undergo a capacity assessment. If you tell that person, he or she is likely to refuse to be assessed and that would defeat the purpose of doing an assessment. THIS IS NOT CORRECT. Section 78 of the SDA states that a "capacity assessor" SHALL NOT perform a capacity assessment of a person's capacity if the person refuses to be assessed. Before the assessment may take place, the assessor must explain to the person that he or she will be assessed the purpose of the assessment, the significance and effect of a finding of incapacity or capacity, and the person s right to refuse to be assessed. Although there is not a similar section in the HCCA, in a case called Re Koch, (1997) CanLII 12138 (ON S.C.), the court stated that this same obligation should lie on persons doing "evaluations" of capacity under the HCCA. In fact, the court also gave the opinion that a person being assessed is entitled to have his or her lawyer or friend or relative present during the assessment if he or she so wishes. There is an argument that this part of the decision (that evaluators under the HCCA must provide the same information to a person before assessment as capacity assessors do under the SDA) is not the ratio decidendi of the decision (the core of the decision) but is obiter (and therefore is, in effect, not a "mandatory" step in the assessment process despite what the court said). However, it can still be argued that the court stated forcefully that there must be procedural fairness when assessments are done. Assessments may be subject to challenge if not done in a fair manner, which should require telling the person to be assessed the same information set out in section 78 of the SDA, although the assessment may be under the HCCA. For assessments of capacity in respect to treatment, health professionals are required to provide information about the consequences of a finding of incapacity as required by their professional College guidelines (HCCA, s.17). This is a minimum standard which should be considered in conjunction with the words of the court in the Koch decision to ensure that capacity assessments are done in a fair manner considering the context of the particular person being assessed and the fact that the result of an assessment is a loss of liberty and decision making authority. Advocacy Centre for the Elderly Updated July 2010 7

POWERS OF ATTORNEY AND ADVANCE CARE PLANNING 9. All advance directives are powers of attorney for personal care. THIS IS NOT TRUE. The term "advance directive" is a generic term that applies to any kind of document or other means of communicating wishes with respect to future treatment or health care. Section 5 of the HCCA states that wishes may be expressed in a power of attorney for personal care, in a form prescribed by the regulations (no such form exists to date), in any other written form, orally or in any other manner. For example, some people may choose to express their wishes by audio or videotape. A POAPC is a document by which a person names a SDM for personal decisions. Personal decisions are decisions in respect to health care, nutrition, shelter, safety, clothing and hygiene. For a document to be a power of attorney for personal care, it must meet the technical requirements as listed in the Substitute Decisions Act. For instance, it must name a person to act as attorney. The grantor of the POAPC may name more than one attorney to act jointly (together) or severally (all named attorneys have equal authority so they may act either together or separately). The grantor may also provide for substitute attorneys in the event that the named attorney or attorneys are not available, willing or able to act at the necessary time. The substitute attorneys may replace the original attorneys if the named attorneys resign. The POAPC must also be properly witnessed by two witnesses who must sign as witness in the presence of and at the same time the grantor executes the document. There is no longer a requirement that the witnesses confirm that they have no reason to believe that the grantor was not capable of executing a POAPC at the time he or she executed it. However, as the validity of the power of attorney for personal care depends on whether the grantor was mentally capable to give power of attorney for personal care at the time he or she signs it, it will not be unusual to see witness statements attached to powers of attorney for personal care that confirm that the witnesses had no reason to believe that the person was not incapable at the time of execution of the document. The document must also have been executed by the grantor (the person making the power of attorney) when the grantor was capable of giving a POAPC in order for it to be valid. The attorneys named in a power of attorney for personal care only get authority to act as SDM if the grantor is: (a) incapable for the purposes under the HCCA; or (b) otherwise incapable in respect to personal decision-making. Under the HCCA, if a person is found incapable in respect to treatment, admission into a long-term care home or for personal assistance services, the person seeking the consent in any of these three areas turns to the incapable person's SDM. If the proper SDM is the attorney in a power of attorney, then the attorney gets the authority to make the decision for treatment, admission or personal assistance services. Until the person Advocacy Centre for the Elderly Updated July 2010 8