Mea Very Culpa ... Estate Planning

You know it's bad when ...

Even I can't believe that I have only posted once since February. And this after promising to post on Nova Scotia's new guardianship representation legislation for the past seven months.

Hence: Mea Very Culpa

When it comes to the promised post(s) about the new Adult Capacity and Decision-Making Act, in my defence, there's a fair bit to digest there and the fact that takes time is somewhat problematic, especially when you have actual client files demanding your attention. That being said, I am working on a representation application at the moment and once I have walked through the process myself, I will be in a much better position to pass on what you need to know.

I'm happy to say that I have done a fair bit of work on the new Nova Scotia  Legal Representation Kit, but that, too, will benefit from having actual practical experience with the new legislation to work from.

In the interim, to appease the masses and remind you that proper "estate planning" involves more than just a Will, I offer you this quick reference estate planning chart courtesy of the Legal Information Society of Nova Scotia (a highly-recommended resource lovingly known as LISNS).

Decisions About Health and Personal Care: What does it take to be legally capable?

For those interested concerned with issues around "consent" (and that should be all of us), might I suggest the recent presentation given by Professor Sheila Wildeman, a law professor at the Schullich School of Law (aka Dalhousie Law School).

Prof. Wildeman has a deep understanding of the issues involved under the Incompetent Persons Act and other relevant legislation in Nova Scotia. Beginning with the now well-known story of Jenny Hatch (the young American woman with Down Syndrome who successfully fought her parents' guardianship application), Professor Wildeman goes on to examine the current state of the law surrounding "legal capacity" in Nova Scotia in regards to guardianship and health and personal care decisions.

But she doesn't just offer a useful tour through the current state of the law - Professor Wildeman does an excellent job of setting out the fundamental values that are at stake here and explaining the differences between substitute decision-making regimes (such as guardianship) and supported decision-making (one of the newest buzz terms in the disability community).

Yes, the lecture is lengthy but I highly recommend it for anyone who wants to get a real grasp on these issues. Because, really, without a firm grasp on these issues, how we can expect to advocate effectively for ourselves and our loved ones?





On a related note, I present to you ARCH's analysis of the recent Supreme Court of Canada decision in Cuthbertson v. Rasouli, 2013 SCC 53.

In Cuthberton, the SCC was asked to examine the process that the law requires when an incapable person is unable to provide consent or refusal in situations involving life support.  Decided under Ontario's Health Care Consent Act, the Court concluded that “treatment” under this Act extended to withdrawal of life support, contrary to the arguments of the doctors.

Bringing The Baby Home .. At Long Last

For what it's worth (and in the disability community it's worth is certainly debatable), the Personal Directives Act comes into force today.

The "much awaited" regulations can be found here.
[Also for what they're worth.]

Health Minister Maureen MacDonald said the new legislation goes beyond instructions for health care.

She said people will be able to assign someone to make sure their wishes for personal needs such as recreation and hygiene are followed.

"It means that people, and particularly, I imagine, people who are older or persons with disabilities, with perhaps some kind of a condition that has a degenerative element, would have the security of knowing that how they wish to be treated will be respected."

And that, right there, would appear to be the critical thing.

For a person with a degenerative condition, this legislation could be very useful. And for seniors planning ahead, much as one would have a Power of Attorney as part of an estate plan, so too would it make sense to have some form of personal directive, both for health care and other issues.

Enter the Personal Directives Act.

Meaning it's probably a good piece of legislation. For what it is.

As long as no one confuses it with what it's not. As some surely will.

That being said, if you're looking for information as to exactly how the process works under the Act ...

As of Thursday, forms will be available through the Justice Department website or through Service Nova Scotia offices, said Health Department spokesman Ryan Van Horne.

There will be two forms, one to appoint a delegate and the other to outline details of expected care and treatment. A booklet explaining the act also will be available.

"The Personal Directives Act covers a wide range of things, including personal-care decisions," Van Horne said.

"For example, if you are admitted to a nursing home and you are a vegetarian, you could ensure that you get a vegetarian diet or that you got fresh air for an hour a day."

Well, let's hope the legislation is good for a little more than just maintaining your vegetarian diet in long-term care.

Which, of course, it is. I just couldn't resist the snark, it seeming like such a strange example to give.

And as to why exactly it's taken so long to actually become law, welcome to politics in Nova Scotia.

The act was passed in May 2008 after it was introduced by Cecil Clarke, who was then the justice minister in the Conservative government. MacDonald couldn’t say why it has taken almost two years for the act to take effect, but she said regulations had to be written and staff in health-care settings and elsewhere had to be trained in the new rules.

Van Horne said officials had hoped to bring the act into force last fall but it got sidelined by the H1N1 crisis.

Yeah, those regulations. They are, after all, both lengthy and substantial.

Well, we can, I suppose, chalk at least one thing up for our beleagured NDP government.

Practical Applications - The Irony of the Personal Directives Act

Facing significant potential problems with the use of a Power of Attorney for many individuals with disabilities, we now turn to the Nova Scotia's new Personal Directives Act, which we initially discussed here.

Might it be useful for our community?

Unfortunately, I'm afraid not.

The first major problem that needs to be pointed out is that the legislation is not yet proclaimed in force. Meaning that, from a legal point of view, it doesn't actually exist. A giant legal tease if you will - it's here. But it isn't. Now you see it. Now you don't.

And no, I have no inside knowledge as to when (or even if) it will be proclaimed. Perhaps something to contact your MLA about should you feel the need to put an end to the shenanigans.

Putting aside that little inconvenience, the question remains - is a "personal directive" a possibility that could be used to avoid guardianship?

The as-yet-unproclaimed legislation would allow a "person with capacity" to make a personal directive setting out instructions or an expression of their values, beliefs and wishes about future personal-care decisions to be made on their behalf and authorizing one or more persons to "act as delegate" to make decisions concerning their personal care on their behalf.

"Personal care” is defined as including, but not being limited to, "health care, nutrition, hydration, shelter, residence, clothing, hygiene, safety, comfort, recreation, social activities, support services and any other personal matter that is prescribed by the regulations". Those would be the regulations which are not yet in existence. Seeing as how the legislation itself remains in some sort of legal purgatory.

Putting that litle issue aside (yet again), I'm afraid I'm to be the bearer of two more pieces of bad news.

First, although the Personal Directive Act allows for combining a personal directive with an enduring power of attorney in a single document [sec. 23], a personal directive does not and cannot apply to financial issues. The situation remains that the only way to nominate a person to act on another's behalf in regard to financial matters in Nova Scotia (outside of guardianship) is through the use of a Power of Attorney.

The second difficulty, at least indirectly, involves the level of competency required in order for a person to execute a valid personal directive.

For the purposes of the Personal Directives Act, "capacity" is defined as "the ability to understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision". [sec. 2(a)]

Turning our attention to our previous discussion on capacity in the context of Powers of Attorney, you might recall this statement:

Capacity and incapacity (and competency and incompetency) are legal concepts. And they are task specific. For example, the minimum level of competency required for a person to execute a valid Will (which we call testamentary capacity) is lower than that required for many other legal acts. In the context of making a Will, what is essential is whether the person has the ability to understand the information relevant to making the pertinent decision and the ability to appreciate the reasonably foreseeable consequences of that decision (or lack of decision).

So although I hesitate to commit to an opinion on this issue at the moment, it certainly would appear, based on the wording of the legislation, that the standard of competency required to execute a personal directive is very similar to that required in order to execute a valid Will.

And given that at least a segment of the population with intellectual challenges who would not have the higher level of competency required to enter into a contract, for example, could likely still execute a valid Will, the legislation would appear to provide an avenue for those individuals to nominate a person to make personal care decisions for them.

Good news, says you.

Maybe, says I.

There's just for one little problem. Caused by sections 9 and 12 of the Act.

9 A personal directive is in effect whenever the maker lacks capacity to make a personal-care decision.

12 (1) A personal directive has no effect (a) in respect of a personal-care decision, whenever the maker has capacity; (b) on the maker's death; (c) when the personal directive is revoked by a maker who has capacity and makes the revocation in writing, executed in the same way as the personal directive; or (d) on a determination by the court that the personal directive ceases to have effect.

We now find that our although our hypothetically challenged person may have the capacity to execute a valid personal directive (if they have "the ability to understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision"), their personal directive will only go into effect when they lack the capacity to make a personal care decision. And, just to put a cherry on it, their personal directive will have no effect whenever they have such capacity. Which capacity, we've already ascertained, they must clearly have had in order to execute a personal directive in the first place.

Leaving us, I would suggest, with a perfectly valid personal directive which will, unfortunately, remain useless (despite its validity) unless and until the maker becomes (even) more incapacitated.

Oh, the irony.

It kind of reminds me of having a Personal Directives Act (which, I must say, will be a very useful and much-needed piece of legislation for very many individuals) that isn't. For the moment, anyway.

Practical Applications: Limitations on Powers of Attorney

Continuing our discussion of the issues involved in a person with a disability executing a Power of Attorney (POA) in favour of the parent instead of the parent having to go through the guardianship process, I offer a few more thoughts on the limitations of a POA.

First of all, as was mentioned in passing before, it must be remembered that if a person is capable of granting a legally valid POA, they are equally capable of revoking it. Which means that you, as the parent, need to be beware that down the road, your child would be allowed to legally change his mind and revoke the POA. As long as you recognize and are prepared for that possibility, then it's okay.

BUT. Big BUT here, before you think you are comfortable with that possibility, that either it wouldn't happen or you would be able to sit down and convince your child not to do this, consider this.

Our adult children who are relatively high functioning, who might be able to get away with signing a POA, are also the ones at the most risk of being taken advantage of others. Because they are higher functioning, they will be out in the more community more, involved in some form of work and leisure activities, and they could be a prime target for unscrupulous individuals who want to take advantage of them. Who could, perhaps, convince them that their parents are interfering with their Independence, are treating them like a child and not an adult, and that they are more than capable of handling their own life and business. And if that person happens to be of the opposite sex, you can throw a dose of hormones into the mix. Which raises the risk of your POA being revoked and your adult child "managing his affairs" with the help of a not quite so honest 'friend'.

Secondly, since a POA only covers financial matters, if a person were to go this route, they need to consider whether they child should sign some form of personal directive, as well. [See this discussion as to the distinction between what is authorized under a POA as opposed to a personal care directive. And you can find the Personal Directives Act here.] This would allow the parent to make decisions for their child around issues of medical and personal care. Although keep in mind, that the same standard of competency as would be required to execute a POA (whatever that might ultimately be) would also be required to execute a valid personal directive.

My last thought (for today anyway) on the possible limitations of a POA, involve the Registered Disability Savings Plan (RDSP). If one of the reasons you want a POA in order to open a RDSP for your adult son or daughter, remember this. Since this wouldn't be a guardianship situation, that means the RDSP will be opened in the name of the adult child. Which raises the question of whether a person holding a POA can just walk into a financial institution and open a RDSP on behalf of another. Perhaps they can.

Although I would hope that a financial institution might require a bit more than that. Like actually wanting to see (or at least speak with) the person with the disability. Which, if that were required, would be fine as long as the disabled person appeared high functioning enough to not cause the bank any concerns. But if they come across as too challenged, a savvy bank rep is likely going to question both their competency to open the RDSP and the validity of your POA.

As I said, I'm not sure how much of an issue this might actually be in practice. Particularly as I hear some anecdotes of how some financial institutions are handling (or not handling) the process of opening RDSPs. Still, I think it's something to keep in mind.

That being said, I would be remiss not to point out that the whole issue of the need for guardianship around RDSPs is being looked at by both the federal government and PLAN with the intent of to eventually come up with a solution that would allow parents to be plan-holders for their adult non-contractually-competent children. And that, in the interim, at least some banks are accepting the argument that if the person has assigned the parent to be his representative for dealing with the Canada Revenue Agency (a process easily done), that will qualify as "a guardian, tutor, or curator of the beneficiary, or an individual who is legally authorized to act for the beneficiary". Which, it appears that at least some Canada Revenue Agency representatives appear willing to accept this situation for the moment.

None of which the lawyerly part of me would recommend. That some banks are willing to fudge the rules at the moment and that the Canada Revenue Agency appears willing to turn a blind eye to that just doesn't inspire confidence in me. Even though I do believe that the Canada Revenue Agency is committed to the RDSP and making it work and are most likely acting in good faith in what they are doing, it still makes me nervous. But then again, I could be just a little anal. It's most likely the lawyer part of me.

~ With thanks to Audrey, who inspired much of this post with her comments ~