The Estate House

Update: Who Should Decide

In mid-December, I told readers about the saga of Samuel Golubchuk, a Winnipeg man whose family was fighting to keep him alive on life support.  Mr. Golubchuk's doctors had deemed that he was beyond saving and told his family that his life support would be removed.  The Golubchuk family went to court to seek an injunction preventing this removal.  They were successful in obtaining an injuction, pending further review of the court.

On February 13, the Court of Queen's Bench in Manitoba upheld the injunction and directed the matter to trial "as soon as possible."  See the Winnipeg Free Press' account here.

The issue seems to be who has the right to decide when to pull the proverbial plug: family members or the treating physician.  Two weeks before the Court's decision, the Manitoba College of Physicians and Surgeons had issued a new guidelines saying that the final decision to pull life support rests with the physician, but allows families a four-day window to seek counsel on their options (one of which includes seeking a court injunction).  The College has said that it will not be reviewing those guidelines.

The decision makes clear that there is currently no law (at least not in Manitoba and definitely not in Alberta) that gives doctors the absolute final say in these matters, no matter what the doctors themselves might think. 

Of course, much of this could be clarified if patients have a Personal Directive (AB) or Living Will or Health Care Directive that clearly indicates who they would like to have make these types of decisions on their behalf.

No doubt there will be much more to come as this matter winds its way through the courts.   

 

Who Should Decide?

This morning, the Court of Queen's Bench in Manitoba is being asked to decide on the fate of an elderly man who has been on life support since late October.  The man's family believes that to remove the tubes would violate his religious beliefs, which say that you are not to hasten death.  The doctors, however, have said that there is nothing more that they can do for him, that he is essentially brain dead, and that it is unethical to continue this treatment given the circumstances.

Personally, I find it fascinating that the doctors believe that they should dictate this man's treatment.  I am not aware of any jurisdiction where the doctor would have the final say over the wishes of the patient, or in the event of the patient's incapacity, the patient's agent under a Personal Directive or Living Will or a publicly-appointed decision-maker.    In Manitoba, while they do not have "Personal Directives", as we call them in Alberta, it is my understanding that they do have other pieces of legislation which allow an individual to appoint a person or persons to make health care decisions on their behalf when they are incapacitated.  In the event that an individual is already incapacitated, a "committee", usually comprised of one or more family members, can be appointed by the court to make those decisions. 

This case serves as another reminder as to why it is important to have a Personal Directive or Living Will.  As it stands, this man has no substitute decision-maker and, therefore, it has created this gap that the doctors want to fill.  No one disputes that a doctor's advice should be taken into consideration in these situations, but no one should have to worry that a doctor, not their family, can ultimately decide their fate, regardless of their beliefs.  I hope the Court sees it that way too.    

Personal Directives Amendment Act 2007

Last week a flurry of activity surrounded the Alberta legislature as the government tried to pass as many bills as possible prior to the Christmas break.  While most of the media attention centred on a couple of the more contentious legislation, an astonishing 25 pieces of legislation passed third reading during a marathon session of the legislature on December 3 and 4.

One of the new bills is the Personal Directives Amendment Act 2007, which I discussed here.  It received Royal Assent on December 7.  Practitioners in this area, including not only lawyers, but also health care workers, should make themselves familiar with the changes to the legislation. 

Getting her Rights Back

Several years ago, Flora L'Heureux had some medical problems.  Her issues were such that an application was made to have a Trustee and Guardian appointed to manage her finances, property, and to make personal care decisions on her behalf.  Since 2003, the Public Trustee has been acting in this capacity. 

Then Flora recovered.  She wanted to look after herself.  Unfortunately, current Alberta legislation made it somewhat difficult for her to do so.  She had to go to court to have herself declared compentent.  Yesterday, Madame Justice Veit of the Alberta Court of Queen's Bench ruled that Flora could regain control over her social life, education, and day-to-day activities.  The decision left control over her legal affairs, finances, and place of residence with the Public Trustee.  Flora then requested that a civil trial be held to determine whether or not she should have control over all of her affairs.  A decision from Justice Veit is expected today. 

Flora is backed the Elder Advocates Society of Alberta, who used the decision yesterday as an opportunity to call for a public inquiry into the Dependent Adults Act, the Personal Directives Act, the Powers of Attorney Act, and the Mental Health Act.  They argue that it is too easy for someone to be declared incapacitated under these acts.   

It is unfortunate that the society didn't do their homework.  In fact, the government is just completing a legislative review of the Personal Directives Act and the Dependent Adults Act and amendments to both of these Acts are currently before the legislature.  The proposed amendments include a revised, more extensive, process under the Dependent Adults Act for determining incapacity.  The amendments to the Personal Directives Act include a process for determining whether a maker has regained capacity.  Furthermore, the current procedure provides that orders made under the Dependent Adults Act must be reviewed, at a maximum, every six years.  When an order is reviewed, the applicant is obligated to provide evidence of the dependent adult's continuing incapacity.  If no such evidence is provided, the order may not be renewed. 

Personal Directives Amendment Act, 2007

When the new session of the Alberta legislature opens today, Monday, November 5, one of the bills scheduled to be dealt with is the Personal Directives Amendment Act.  

The Personal Directives Act was proclaimed in 1997, so it is fairly new legislation.  It allows individuals to appoint someone as their agent to make decisions of a non-financial nature on their behalf when they are no longer able to.  It also allows those individuals to set some guidelines for the types of decisions they want their agent to make.  It has worked very well as a relatively simple tool that can be done on your own or with a lawyer (of course we recommend going the lawyer route).   By having a proper Personal Directive in place, one can avoid the possibility of being the subject of a guardianship application, a procedure that can be time consuming and expensive.

However, as is often the case with new legislation, several issues emerged that were creating problems for individuals, health care providers, agents, and the courts.  As a result, in 2005 a legislative review of the Personal Directives Act was undertaken and Bill 40 proposes amendments to the Act that resulted from this consultation process.

Several of the amendments are quite substantial.  For example, there is the introduction of a process that would allow for a Personal Directive to be deactivated if it is determined that the individual has regained his or her capacity.  This is ideal in situations where a person may have become ill and needed to have their agent make some decisions for him, but then proceeded to make a full recovery. 

There is also going to be a new process whereby the Office of the Public Guardian will accept and investigate written complaints about the actions of the agent.  The complaint needs to be substantive, i.e. it has to show that the agent's actions are likely to bring harm to the maker, not just that you think it's better for your Mom to live in Edmonton than in Red Deer.   

Other provisions will allow the Office of the Public Guardian to act as an agent of last resort if an individual has no one else that they trust to make that decision for them, the recognition of non-Alberta directives, and the introduction of a voluntary registration system.  This registration system will allow makers or agents to go on-line and provide summary information about the Personal Directive (i.e. maker, agent, date).  While it sounds good in theory, at this point third parties (i.e. lawyers) will not be able to enter that information.  The reality is that a lot of our clients are elderly and not familiar or comfortable with using computers for that kind of task, not to mention the procrastination that clients of all ages practice when it comes to getting their estate documents together.  It would make much more sense if lawyers were allowed access to the system to input that information on behalf of consenting clients.

Bill 40 has currently passed first reading.    

Where to Keep your Documents

A few years ago, I did up documents (will, power of attorney and personal directive) for someone who advised me that she was going to store the originals of those documents in the safety deposit box belonging to the person she had appointed as her executor and attorney.   She recently became ill and it was discovered that she never delivered the documents to the safety deposit box.  Now her family is having to search her home to find out where they are.

Always always always make sure that people know how they can access your documents.  If you think about it, at the time that they're needed, you probably will not be in any position to remember where they are.   It doesn't make any sense to have documents done if no one is going to be able to find them when they're needed. 

Trusteeship v. Enduring Power of Attorney

Recently, I assisted a client with an application for Guardianship & Trusteeship for his father.  During the course of the application, it came to light that the father had executed an Enduring Power of Attorney in favor of my client's brother several months prior.  My client asked me what the effect of his application would be on the Enduring Power of Attorney.  He did not want to have to work with his brother to look after their father due to ongoing family conflict.

While a court must always be sensitive to the wishes of the donor, if there is strong evidence that the current situation isn't in the donor's best interests, the court can make an order for Trusteeship.  This order effectively nullifies the Enduring Power of Attorney.

If that's the case, then why have an Enduring Power of Attorney?  Well, for one it's a lot cheaper than an application for Trusteeship.  The key is choosing an attorney who will look after your best interests and be accountable to the eventual beneficiaries of your estate.  If your attorney is open and honest with your family and friends, and if your affairs are being looked after properly, the likelihood of a Trusteeship application by an opposing family member is slim. 

The ones that are challenged most often are Enduring Powers of Attorney drawn up for individuals who are elderly or for whom capacity is an issue.  If you are taking an elderly parent to a lawyer to have them draw up a power of attorney, make sure that the lawyer takes good notes.  If you have any doubts at all about your parent's capacity, then you should not proceed. 

Heli Munroe is Coming Home!

I have blogged on the Helena Munroe matter here and here.  As a brief summary, Heli (as she is known), an Alzheimer's patient, was taken out of the country by family relatives in November 2005.  Although her husband, Sandy, held an Enduring Power of Attorney granted by Heli, his attempts to get his wife back to Nova Scotia were futile...until now.

I was pleased to read in the National Post today that Heli is on her way home.  The courts in Nova Scotia upheld Sandy's power of attorney in 2006 and the Canadian High Commission eventually located Heli in a mental institution in her native England.  However, before Britain would allow Sandy to bring his wife back to Nova Scotia, he had to undergo an investigation by a panel designed to protect the interests of vulnerable adults.  Last week they gave him the go-ahead to bring Heli home. 

Sandy Munroe, while pleased to have his wife back, is understandably frustrated with the length of time this process has taken.  He is also upset that his wife's brother will not be charged with abduction.  It has been a wake up call for vulnerable adults and their families across Canada that even an Enduring Power of Attorney may not protect you.  It's a situation that must change.

The Decision to Drive...Or Not.

You might recall hearing about a horrible accident in Abbotsford, B.C. last month, where a 71-year-old man drove his truck into a group of people getting ready for a wedding celebration, killing six people and injuring 17.  Apparently the group was walking in the middle of the dark, unlit country road when the driver crested a hill and, for whatever reason, didn't see them in time to prevent the tragedy.

The exact circumstances of the accident are for the police to figure out.  However, some people are focusing on what they believe to the major underlying factor: the driver's age.

Exactly when an individual should stop driving is a very emotional subject.  Families might know that it is time for their loved one to give up the keys - for everyone's safety - but it is very difficult for elderly persons to give up one of their last vestiges of independence. 

In Alberta, anyone over the age of 75 must submit a medical report when renewing their driver's license.   That's fine for individuals who still have their faculties, but what can families do in situations where Mom or Dad no longer has the capability to make that decision on their own?

The first thing to do would be to take the elderly person in question to a physician to do a preliminary investigation.  Depending on the outcome of that consultation, the physician may refer the potential driver to undergo further tests.  DriveABLE is a network of driving assessment centres across North America that provide objective tests developed through years of research to determine whether someone should still be driving. 

If the situation is getting serious, you should inquire whether a Personal Directive needs to be activated or whether an application for Guardianship is in order.   The powers found in the Personal Directive or Guardianship order usually allow the Agent or Guardian to make this decision on the donor/dependent adult's behalf.

While your family member will probably be quite upset with you for trying to have their license taken away, remember that it is for everyone's safety that he or she stay off the road.   It would also be a good idea to be prepared for chauffeur duty.   

Dependent Adult legislation in Alberta

This morning's Edmonton Journal carried an interesting article about a woman who is "fighting for her freedom."  Flora L'heureux is not a political prisoner, or any kind of prisoner really.  Rather, she was declared a dependent adult and feels that she no longer deserves that designation. 

Contrary to the tone of the article, it is not that easy to have someone declared a dependent adult.  A physician or psychologist must complete a Form 1 declaring the adult incompetent to manage their own affairs, and a service provider (either a physician, psychologist, or social worker) must complete a detailed functional assessment of the individual's competencies, both mental and ambulatory.   That does not mean that the process does not lend itself to abuse in certain circumstances.   For example, if n'er'do well child has a doctor friend who is willing to complete the forms for him or her, it is possible that an application will be filed (and perhaps approved) for someone who is not incompetent.   However, the legislation tries to address that by requiring that the proposed dependent adult be personally served with any such application; presumably someone who is competent can fight the application at that point, prior to being declared a dependent adult. 

It is not as impossible as the article suggests to have a dependent adult designation overturned; I have seen it done on some of the files I have been involved with.   It is not the easiest process, but it can be done.  You will need to file doctor's reports declaring that you do have the ability to look after your own interests; if you can't find a doctor to prepare such a report, perhaps you aren't as compentent as you thought.   

Of course, all of this can be avoided if  you have a proper Personal Directive and Enduring Power of Attorney in place.   These documents allow you to appoint someone you trust to look after your interests when you no longer have the capacity to do so.  The idea is that by appointing someone you trust, you avoid the possibility of having someone else try to take advantage of you by applying to be named your Trustee and Guardian.  You have control and your family is aware of your wishes.  Furthermore, the cost of seeing a lawyer to have these documents drawn up correctly is much less than the costs of having to fight a designation as a dependent adult that is premature.     As I'm sure Flora L'heureux would say, it's well worth the price.