Our Society is A Changing & Our Laws Should Too
Originally posted @allaboutestates.ca
Further to my colleague Diane Vieira’s March 15, 2017 blog, in which she summarized the Law Commission of Ontario report on legal capacity, decision-making and guardianship in Ontario, I wanted to highlight some key recommendations that I found to be particularly relevant. Over the last while, I have noticed a few changes including:
*Many of our older clients have outlived their family and friends
*We are also seeing an increase in dementia
*Many of these individuals do not have a POA for personal care
*If they do have a POA for care, this attorney is often not living closeby.
I work regularly with financial organizations and their estates division that hold the POA for property on behalf of their client. As was noted in the report: “Trust companies pointed out that they not infrequently found themselves acting as a property decision-maker without anyone at all to consult regarding personal care issues, and identified this as a significant challenge in achieving the overall goals of the legislation.” I concur. While I always assume capacity unless advised otherwise, there are many situations when capacity may be questionable. It is in these situations when direction and approval from a substitute decision maker is needed.
The Report identified “the growing number of businesses providing “elder care planning”, “transition planning” or “seniors care management” services. These businesses may assist individuals or their families in developing and monitoring care plans; navigating the health, long- term care or community services systems and assisting with accessing services; providing counselling or advice where difficult choices must be made (for example, whether to move to long-term care or remain in the community); and providing practical supports to carry out decisions.” Absolutely care managers can play a critical role in ensuring the older individual is living as well as they can by identifying what is needed, how much it costs, what other options exist and whether the expenditure will be ongoing. However, we are not the decision makers.
In terms of finding/designating a decision maker, “the LCO also believes that it is worthwhile to work towards developing a licensing and regulatory regime for professional, for-profit substitute decision-makers. These measures would expand the appropriate options for individuals, reduce the risks of abuse from unregulated options, respond to demographic trends affecting the availability of family members as substitute decision-makers, reduce the “personal care gap”, and more effectively focus the mandate and resources of the Public Guardian and Trustee.”
Another good idea and I look forward to seeing how this unfolds and whether it would be as a branch of the PGT or as a separate stand alone organization. Being a POA for care is a big responsibility. In addition to the recommendation of appointing a Monitor to oversee the attorney’s actions, and providing training to allied professionals, I can also see the need to provide orientation and training to newly appointed POA’s prior to signing a ‘Statement of Commitment’.
Our landscape is changing and our laws and policies should reflect the needs of our aging society.
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