Law Times

PAGE 12 FOCUS OctOber 25, 2010 • Law times Capacity assessments a legal minefield BY ROBERT TODD Law Times O ne of the key challenges many elderly peo- ple grapple with is a gradual loss of the abil- ity to manage property and personal care. It's a struggle that can become even more dispiriting when it leads to a capacity assessment. "It's an invasion into someone's personal autono- my, and so the courts do not take that lightly," says Sharon Davis, an associate at Hull & Hull LLP. Davis notes that, contrary to what many people assume, capacity assessors aren't necessarily doctors. The public guardian and trustee keeps a roster of as- sessors, dividing them into different specialty areas. For example, assessors are designated to identify de- mentia in the elderly or diagnose intellectual disabil- ities in the general population. Nurses, occupational therapists, psychologists, social workers, and doctors may complete these and other types of assessments. Assessors play a role in a variety of trusts and estates matters, Davis notes. In a will challenge, for example, a geriatric psychiatrist may be called on to provide a retrospective capacity assessment. "That sometimes can be very helpful in determining whether someone had testamentary capacity," she says. Capacity assessors also have a big part in guard- ianship battles, which often involve squabbles among siblings over who should be the guardian af- ter a parent has been deemed incapable. "It might sound nice to have your kids fighting over you to look after you, and I'd like someone to look after me if that ever happens, but you don't really want them in court doing that," Davis says. "Those things can get particularly nasty because it's almost as though people are litigating their sibling rivalry before mom or dad even passes away." The test for incapacity to manage property is in s. 6 of the Substitute Decisions Act. The test for incapacity to manage one's own personal care is in s. 45. According to Davis, people frequently submit to these assessments, which makes a lawyer's life much easier. But she's also seen complicated sce- narios where two people are seek- ing guardianship and each wants a separate assessment conducted by a different professional. The situation can get much trickier if people don't recognize or won't accept that they have no capacity. "I've certainly seen that happen, too, where the person re- fuses," says Davis. "That's always a difficulty. You know, when you've got a family member who is mad with you, they don't want you to take over for them, and yet you see that that has to be done." That's where s. 79 of the act, which allows for the issuance of an order for an assessment, comes into play. The section reads: "If a person's capacity is in issue in a proceeding under this act and the court is satisfied that there are reasonable grounds to believe that the person is inca- pable, the court may, on motion or on its own initia- tive, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person's capacity." But s. 79 is not an easy one to invoke, Davis notes. It typically involves permission to allow po- lice to enter people's homes to escort them to the hospital for assessment. Marshall Swadron of Swadron Associates points out that the act also allows for statutory guardian- ship of property. As outlined in s. 16 of the act, any- one can request an assessment on another person to determine whether the public guardian and trustee While it might sound nice to have the kids fighting over guardianship of an elderly person, the courts aren't the place to do it, says Sharon Davis. should take over the handling of the property. "You want to be careful be- fore you have that happen," says Swadron. "Sometimes, capacity assessments result in unintended consequences." He has seen assessments go against individuals who have already made arrangements for the management of their prop- erty, either formally through a continuing power of attorney for property or informally with a family member helping them manage it. Such a scenario often means that even though there was no problem with the han- dling of the person's property, the state has taken it over. The capacity assessor is supposed to conduct due diligence and not conduct an assessment if there is an attorney in place, but that doesn't always happen, Swadron points out. "Even if there is a power of attorney in place, if the capacity assessment occurs, then it triggers the statutory guardianship by the public guardian and trustee," he notes. As Davis sees it, the most pressing aspect of man- aging the capacity assessment process involves keep- ing parties mindful of the loved one's needs. "The single most important thing for family to re- member is that the test here is always the best interests of the incapable person," she says. "So the court will go to great lengths to protect those best interests. The best interests of the children or the people fighting over guardianship don't matter. So keeping all of that baggage out of it is important." LT "When you've had cancer, every day is a gift." "Thanks to the groundbreaking research, the care of Dr. Messner and the compassion of the whole team at the Princess Margaret Hospital, I'm here today." A gift left in your Will can save lives. If cancer is your cause, support one of the top 5 cancer research centres in the world. To learn more about planning your gift, call 416-946-2295 or email legacy@pmhf.ca See Chris Taylor's story atwww.pmhf.ca Untitled-6 1 www.lawtimesnews.com 10/14/10 3:05:16 PM -Chris T a y l or

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• Financial Recovery
• Focus On Trusts & Estates