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Page 10 OctOber 20, 2014 • Law Times www.lawtimesnews.com FOCUS For many years, Oosterhoff on Trusts: Text, Commentary and Materials has provided students, practitioners and teachers with expert insight into the concepts and complexities of trust law. New in this Edition Oosterhoff on Trusts: Text, Commentary and Materials, 8th Edition thoroughly incorporates the vast changes in the law of trusts since the previous edition and has undergone major changes in the organization of the text. Some of the new and updated subjects discussed include: • The Duty to Account, the Duty of Care and Fiduciary Duty • Constructive Trust and Unjust Enrichment, Wrongful Gains, and Perfection of Intentions • Knowing Assistance and knowing Receipt • Rights and Liability of Trustees, including the Rights of Trustees inter se • Tracing and Recovery of Trust Assets The Uniform Trustee Act, which was recently promulgated by the Uniform Law Conference of Canada, is compared and contrasted to existing provincial trustee statutes. A leading introductory text on the Canadian law of trusts Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 986352-65203 $269 Hardcover August 2014 approx. 1350 pages 978-0-7798-6352-5 00223PY-46110 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. New Edition Oosterhoff on Trusts: Text, Commentary and Materials, 8th Edition Albert H. Oosterhoff, Robert Chambers, and Mitchell McInnes Lawyers worry about misuse of prior capable wishes by doctors By JuDy vAn RhIJn For Law Times here's growing frustra- tion among patient ad- vocates over the depth of misunderstanding in the medical system regarding the prior capable wishes of pa- tients who now require others to make their decisions for them. Not only are substitute deci- sion-makers unsure of how to handle these wishes, but the med- ical profession often ignores them or applies them without any input from the patient or the personal attorney and it sometimes does so completely out of context. So can lawyers do anything about it? Ontario is unique in its treat- ment of the previously expressed wishes of people who become incapable of making their own decisions. The Ontario Health Care Consent Act provides that the wishes expressed while a per- son is capable are binding on an attorney and they don't need to be in writing. According to Oakville, Ont., estates and trusts lawyer Joanna Ringrose, this was a revolutiona- ry change in the law. "Regardless of what instructions or wishes you've expressed in your power of attorney for personal care, your living will or other form of advance care planning, the sub- sequent verbal wishes of a capable person can override them." Ringrose recalls that at the time of the legislative changes, a lot of people were looking to formalize their wishes. Concerns over the misuse of these directives came to light during the Law Commission of Ontario's research and consulta- tion phase in its capacity project. Judith Wahl, executive director of the Advocacy Centre for the Elderly, heard many horror sto- ries during the preparation of a paper for the project. "All those prior capable wishes are grossly misused," she says. "The legislation deliberately called them wishes. They are meant to guide the substitute decision-maker when they are acting. They are required to fol- low them but they must inter- pret them in the circumstances, not take them literally." Wahl believes health providers often treat the decisions as though they're consents. "It's an indica- tion of a person's preference out of context: 'If this happens I think I'd wish to do this.' When they do ac- tually get ill, many people change their minds." Her organization's paper found that because of the in- creasing emphasis on encourag- ing patients to plan in advance, health practitioners have started to solicit patients' wishes with- out giving them sufficient in- formation or considering the ramifications. The health-care provider then applies these un- informed wishes without ob- taining any interpretation from the substitute decision-maker or even a patient who's still capable. Wahl has seen what she says are bizarre cases where health- care facilities get people to sign di- rectives to never transfer them to hospital. "What the patient means is that they don't want to end up dying in hospital. Many people assume that for a temporary mea- sure they would go to hospital to get treatment and then be retur- ned to long-term care. One lady had fallen and broken her hip and the facility said, 'She doesn't want to go to hospital.'" In another case, an elderly patient signed a non-resusci- tation consent form. "In the context of his present condition, it made sense," says Wahl. "He would not be a good candidate for resuscitation. But the phy- sician thought it meant do not treat and took him off all his Parkinson's medication." Jasmine Sweatman of Sweat- man Law Firm in Oakville, Ont., believes there's a disconnect in the communication with the me- dical profession. "What's missing is respect: respect for the time and effort lawyers go through putting the wishes down on pa- per. They pay attention if it suits their purposes, depending on what stage the patient is at, ra- ther than going to the substitute decision-maker for consent." The Advocacy Centre for the Elderly believes many health pro- fessionals don't have the necessary education to understand their role. "Health organizations and professional organizations, inclu- ding the Canadian Medical Asso- ciation, give out directions that don't ref lect the law in Ontario," says Wahl. "It's a frustrating area." Given that misuse of prior capable wishes can arise in the health profession, what can lawyers do to counter it? Alexan- der Henderson, a lawyer at Oiye Henderson in Toronto, believes the current practice is in a state of f lux because the area is still evol- ving. "We have everything from lawyers taking video recorders into hospitals to failing to keep any notes at all. The proper prac- tice is somewhere in between." Henderson believes many lawyers aren't meeting the standard of care. "Obviously, as a lawyer, the more you have recorded the better. Take exten- sive notes and if people come in with a litany of handwritten wishes, take a copy." In Ringrose's experience, clients rarely choose to talk to lawyers about their wishes, in- stead preferring to focus their time on the will and the power of attorney for property docu- ments. Sweatman agrees. "The power of attorney is often an afterthought after the will, and between the two types — prop- erty and personal care — people want to focus on the money." Sweatman believes lawyers should be looking more at the philosophy that's to guide the de- cision-maker rather than work- ing through every permutation with a direction for all possible circumstances. "You never know what the situation is going to be or how far the medical world will have evolved. Remember, it might be 10 or 20 years later." Ringrose also believes detailed treatment plans aren't always helpful. "Treatments change so quickly. You don't want to pin the attorney down in case a new treat- ment becomes available." She believes the emphasis should lie on making sure deci- sion-makers understand their role and ensuring the necessary discussions take place while the grantor is capable. "It might be helpful for the attorney to keep some record of those discussions, especially if the grantor is starting to deteriorate and decision-mak- ing is imminent." She also recommends law- yers remind substitute decision- makers that while they have an obligation to honour a grantor's prior capable wishes, they also have a duty to continue to com- municate, to the extent possible, with an incapable person and at least take into consideration the T See Prior, page 12

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