The ABCs of POAs and Planning for Decision making and Basic Will Information Advocacy Centre for the Elderly 2 Carlton Street, Suite 701, Toronto, Ontario M5B 1J3 www.acelaw.ca Advocacy Centre for the Elderly 2017

Advocacy Centre for The Elderly 2 Carlton Street, Suite 701 Toronto, Ontario M5B 1J3 Tel - 416-598-2656 Fax - 416-598-7924 Website www.acelaw.ca ACE Newsletter – E version – send Email to kabam@lao.on.ca with Subject Line NEWSLETTER Newsletter is also available on website and by hard copy by mail Advocacy Centre for the Elderly 2017

Overview Decision Making – When do I make decisions for myself and when does someone else get authority to do that FOR me ? What happens if I become mentally incapable to manage money ? WHO will do that for me and can I CHOOSE someone to do that ?– Powers of Attorney for Property – How do I get one for myself? WHO will manage my money for me IF I don’t have a Power of Attorney for Property ? Advocacy Centre for the Elderly 2017

Overview What happens if I am not mentally capable to make HEALTH decisions for myself? Who would make decisions FOR me? Can I pick someone to do that for me? - Powers of Attorney for Personal Care - How do I get a POAPC for myself? Do I NEED one? Advocacy Centre for the Elderly 2017

Wills and Organ Donation Wills- What is a WILL? Do I NEED to have a will and why or why not? If I WANT to make a will , how do I do that ? Advocacy Centre for the Elderly 2017

What Decisions do you make in your Life? Decisions about Property – money, personal goods, furniture, things of value to YOU, bank accounts, Public pensions or welfare benefits Decisions about Personal Care – Shelter, nutrition, hygiene, safety, clothing and HEALTH care Advocacy Centre for the Elderly 2017

Who Decides? You decide for yourself if you are MENTALLY CAPABLE Your Substitute Decision Maker (Substitute Decision Maker ) if you are NOT mentally capable Advocacy Centre for the Elderly 2017

What does it mean to be MENTALLY CAPABLE? Mental Capacity is related to a particular decision You can be capable for some purposes and incapable for others You can be incapable to manage money but capable for Health/personal care decisions Advocacy Centre for the Elderly 2017

What does it mean to be MENTALLY CAPABLE? To be Mentally Capable means that you have the ABILITY TO UNDERSTAND information to make a decision AND You have the ABILITY to APPRECIATE the consequences of making a decision or not making a decision Advocacy Centre for the Elderly 2017

What does it mean to be Mentally Capable? Mental capacity to make DECISIONS is NOT determined by a doctor or any other health professional EXCEPT when it is about a HEALTH decision It is not a score on any TEST It is not a Diagnosis of Alzheimer’s or of any other mental health condition Advocacy Centre for the Elderly 2017

Capacity Capacity is relative to a PARTICULAR DECISION Can fluctuate or change You are PRESUMED to be mentally capable unless there is EVIDENCE OTHERWISE Some people may be capable for more decisions than others and some people capable for less decisions than others Advocacy Centre for the Elderly 2017

Who decides on whether you are capable or not? It depends on the TYPE of decision and whether the law requires a particular person to assess capacity for a particular purpose Advocacy Centre for the Elderly 2017

Who Assesses Capacity? Different types of people that assess capacity include Lawyers/any service providers when they are taking direction from you for any service because they need to take direction from a person that is mentally capable “Capacity Assessors” who are certain types of Health Practitioners who assess your ability to manage money “Evaluators” who are certain types of Health Practitioners who decided whether you are capable to make a decision about moving into a LTC home Health care professionals to determine capacity to make health treatment decisions Advocacy Centre for the Elderly 2017

Planning for incapacity How can you CHOOSE someone to make decisions for you if you should become mentally incapable? Powers of Attorney for Property Power of Attorney for Personal Care Advocacy Centre for the Elderly 2017

What if you DON’T have these Powers of Attorney documents? Who makes decisions for you? Property - Statutory Guardians ( Public Guardian) - Court Ordered Guardians - Trustees to manage Old Age Pensions or Welfare Health care – AUTOMATIC List of people as set out in the Legislation (Hierarchy of Substitute Decision Makers) - EVERYONE has an SDM for health care even if you NEVER have chosen someone to do that for you Advocacy Centre for the Elderly 2017

Power of Attorney for Property – WHAT IS THIS? a DOCUMENT, in writing in which you NAME someone to be your “ attorney” You have to SIGN the document in front of two witnesses TWO WITNESSES have to sign and witness your signature Advocacy Centre for the Elderly 2017

Continuing Power of Attorney for Property Comes into effect IMMEDIATELY as soon as you sign it Your named attorney can act for you while you are mentally capable AND your attorney can CONTINUE to act when you become incapable OR Can come into effect ONLY when you become incapable to handle money if the document states that Advocacy Centre for the Elderly 2017

Do you NEED a Power of Attorney for Property? Advocacy Centre for the Elderly 2017

IMPORTANT things to remember before signing a Continuing POA Property You should ONLY name someone as attorney if you have someone that you TRUST and think that you will be able to trust in the future You can name MORE than one person in the Continuing POA Property to act either JOINTLY (always act together) or JOINTLY or SEVERALLY - they can act both together or separately Advocacy Centre for the Elderly 2017

IMPORTANT things to remember before signing a Continuing POA Property The person who name as attorney will have the ability to “sign your name” – so think about what that means. * This means that the attorney can get into your bank account Or can cash any cheque you get! Advocacy Centre for the Elderly 2017

Think FIRST before signing a Continuing POA for Property! Abuse of power of attorney is a CRIME; however, it is often very difficult to detect, and to recover money/property lost or misappropriated by the attorney Advocacy Centre for the Elderly 2017

How do prepare a Continuing Power of Attorney for Property? Use the free Ontario POA Kit but be careful completing it Go to a free legal clinic (some prepare these documents - but NOT all – ask them if they do or if they know of a lawyer or other legal service that can help you get one done ) Advocacy Centre for the Elderly 2017

What do I do if my Attorney is Misusing the POA Property ? If you have signed a Continuing POA Property and you think that your attorney is abusing that power, you can: Revoke (take back) the Continuing POA Property in WRITING Require the attorney to account for how he or she has managed or not managed your money/property – you may need legal help to do this Create a new Continuing POA Property Advocacy Centre for the Elderly 2017

What if you become mentally incapable and have never prepared a Continuing POA Property ? You might end up being “assessed” by a health professional called a “Capacity Assessor” If you are found incapable, the Public Guardian and Trustee will become your “Statutory Guardian and will then manage your money OR Someone can apply to court to become your “Guardian of Property” Advocacy Centre for the Elderly 2017

What if you become mentally incapable and have never prepared a Continuing POA Property ? IF you are admitted to a Psychiatric Hospital, a physician MUST assess whether you are mentally capable to manage property if you have no POA Property If you are found incapable of managing property, the PGT will also take over as your statutory guardian and mange your money Advocacy Centre for the Elderly 2017

Applications to Consent and Capacity Board If you are found incapable of managing money and a statutory guardianship is created, you can ask the Consent and Capacity Board to have that finding reviewed Advocacy Centre for the Elderly 2017

Other options if you are not mentally capable and don’t have a Continuing POA Property ? - Trusteeships If you get OAS, CPP, ODSP or OW, and you become incapable of managing property and have no Continuing POA Property ,someone can apply to become your TRUSTEE to manage your money for you You will need to be assessed by a physician or anyone else that Service Canada will recognize as having authority to give such an opinion and have forms completed and sent to Service Canada for a family member or friend to manage your benefits or pension Advocacy Centre for the Elderly 2017

Personal Care Decisions Health care, nutrition, shelter, clothing, hygiene or safety decisions If you are capable – only YOU can make these decisions If you become incapable – one of the following will make personal care decisions for you Guardian of the person appointed by court Attorney for personal care BUT NOTE- If decision is about health care, admission to a long-term care home or personal assistance services THEN your SDM is Person that meets conditions to be SDM that is highest in the list in the Health Care Consent Act Advocacy Centre for the Elderly 2017

Choosing a future SDM - Power of Attorney for Personal Care YOU can prepare a POA for Personal Care to CHOOSE someone to make health and other personal care decisions POA for Personal Care – is a DOCUMENT, in writing, You name someone to be your attorney for personal care. You can also write in that document your wishes about health care and treatment. You sign the document in front of two witnesses The two witnesses also sign the document Advocacy Centre for the Elderly 2017

Power of Attorney for Personal Care You can name MORE than one person to be your attorney for personal care, The attorneys can make decisions for you TOGETHER ( jointly) , or Make decisions for you jointly AND separately Advocacy Centre for the Elderly 2017

POA for Personal Care The POA for Personal Care ONLY comes into effect when you become mentally incapable of making personal care decisions THIS IS DIFFERENT than the Power of Attorney for Property which comes into effect immediately on signature unless it states otherwise Advocacy Centre for the Elderly 2017

How do you prepare a POA for Personal Care ? Use the free Ontario POA Kit but be careful completing it Go to a free legal clinic (some prepare these documents - but NOT all – ask them if they do or if they know of a lawyer or other legal service that can help you get one done ) Advocacy Centre for the Elderly 2017

Important Things to think about before signing a POA for Personal Care Do you need a POA for Personal Care ? Why? Do you have someone that you trust to name as attorney - remember that if you are found to be incapable, this person will be able to make decisions about where you LIVE, what HEALTH CARE you will or won’t get, what food you eat, what clothes you wear, and what risks you can take… Advocacy Centre for the Elderly 2017

Who is your SDM if you are not mentally capable to make Health Decisions? You ALWAYS have an SDM for Health Care even if you have not prepared a POA for Personal Care Your SDM is the person HIGHEST on the list set out in the Health Care Consent Act Advocacy Centre for the Elderly 2017

List of SDMs for Health Care Court Ordered Guardian of the Person Attorney in a Power of Attorney for Personal care Representative (person appointed by the Consent and Capacity Board) Spouse or partner Child or parent. A parent who only has a right of access. Brothers or sisters Any other relatives The Public Guardian and Trustee Advocacy Centre for the Elderly 2017

Requirements for Person to be an SDM The person highest in the hierarchy may give or refuse consent only if he or she is: a) Capable in respect to the treatment; b) At least 16 years old unless the parent of the incapable person; c) Not prohibited by a court order or separation agreement from acting as SDM; d) Available (including via electronic communications); and, e) Willing to act as SDM. BOTTOM LINE: IT IS THE OBLIGATION OF THE HEALTH PRACTITIONER OBTAINING CONSENT FROM AN SDM TO ENSURE THESE REQUIREMENTS ARE MET. Advocacy Centre for the Elderly 2017

List of SDMs for Health Care Person highest in list in YOUR life becomes your SDM for Health Care If you have more than one person in the same category, then ALL of them must act together and agree or they may pick one of the group to act for you If they cannot get unanimous agreement, either to the decision or as to which of them will act as SDM, PGT is required to make the decision Advocacy Centre for the Elderly 2017

How does your SDM make Health Decisions for you? Must follow your Wishes - so if you feel strongly about a particular treatment that you don’t want, you need to tell your future SDM If no wishes are known then the SDM must act in what he or she thinks is what is in your “Best Interests” Advocacy Centre for the Elderly 2017

Definition of Best Interests SDM to consider: values and beliefs other wishes (i.e. expressed while incapable) whether treatment is likely to: i) improve condition, ii) prevent condition from deteriorating, iii) reduce the extent or rate of deterioration whether condition likely to improve or remain the same or deteriorate without the treatment if benefit outweighs risks whether less restrictive or less intrusive treatment as beneficial as treatment proposed. Advocacy Centre for the Elderly 2017

What's the difference between a Power of Attorney for Personal Care and an “Advance Directive” or “Living Will”? Ontario legislation ONLY refers to POA for Personal Care and the ability of people to express “wishes” about future health care There is no reference in the legislation to advance directives or living wills . There is a campaign to get people to stop using these terms as these terms are only causing confusion . Advocacy Centre for the Elderly 2017

What is Advance Care Planning in Ontario? 1. IDENTIFICATION when you are capable of your future Substitute Decision- Maker (SDM), by either a) confirming that YOU are satisfied with your default/ automatic Substitute Decision-Maker in the hierarchy list that is in the Health Care Consent Act OR b) YOU choosing someone else to act as SDM by preparing a Power of Attorney for Personal Care (a formal written document). 2. WISHES, VALUES, AND BELIEFS – YOU when capable discussing your wishes, values and beliefs, and more generally how you would like to be cared for in the event of incapacity to give or refuse consent. These are used as a GUIDE for the SDMs NOT the Health practitioners Advocacy Centre for the Elderly 2016

Advance Care Planning In Ontario you DO NOT need to express wishes about care in writing in a document called a “living will”- There is no such document called a “living will” in Ontario You can express wishes about future care by ANY MEANS in your POA for Personal Care on a piece of paper By telling your SDM or another person By communicating in any way you communicate (ASL, Bliss Board, etc) Advocacy Centre for the Elderly 2017

Health Consent vs. Advance Care Planning Before treating you, health professionals must get consent from YOU if capable If you are not capable, the health professional must get the consent on your behalf from your proper SDM Even if you have a written advance car planning document , the health professional must get the consent from YOU or your SDM – the document is NOT a consent Advocacy Centre for the Elderly 2017

Health Consent vs. Advance Care Planning Advance care planning can ONLY be done by YOU (not your SDM) In advance care planning you can CONFIRM that you want the person or persons highest in the Hierarchy of SDMS in the Health Care Consent Act to be your SDM OR CHOOSE someone to be your SDM by preparing a POA for Personal Care Express WISHES about your future health care and communicate your VALUES and BELIEFS Advocacy Centre for the Elderly 2017

Health Consent vs. Advance Care Planning The advance care planning wishes, however expressed, orally or in writing or by other means, is NOT a direction to your health providers EXCEPT in an emergency when its not possible to get consent from you or your SDM Advocacy Centre for the Elderly 2017

Advance Care Planning Advance care planning helps your SDM make health care decisions if you are not mentally capable to make them yourself Advocacy Centre for the Elderly 2017

Important things to know about advance care planning Are you required to sign an “advance directive” or any other form of advance care plan before moving into a long term care home or getting care in a hospital? NO Can the home/hospital require you to sign such a document – NO – it is voluntary Can the home/hospital require you to use their form if you want to express wishes about health care – NO – you can express your wishes any way that you want – orally, in writing, in a POA for Personal Care, by other means Advocacy Centre for the Elderly 2017

DNR/ No CPR Wishes about this treatment (refusal of this treatment) can be done in oral/ written advance care planning wishes even if you are not at end of life If you are at end of life – and a decision is directly relevant to your then present health condition, you can give or refuse consent to CPR Advocacy Centre for the Elderly 2017

How Consent, ACP, and Goals of care conversations relate Advocacy Centre for the Elderly 2017

Wills A will is a document in writing that sets out your directions on how your estate should be taken care of and distributed after your death. It takes effect on your death. Your estate is the property that you own or have a legal interest in. In the will you name someone to be your ESTATE TRUSTEE (executor) to manage the distribution of your estate and direct how you want your estate distributed Advocacy Centre for the Elderly 2017

What is included in the contents of a will? names someone to be your ESTATE TRUSTEE (executor) to manage the distribution of your estate directs how you want your estate distributed must be signed by you in the presence of two witnesses who also must sign it is only valid if you are mentally capable to make a will, you make it voluntarily and not under duress It is only in effect after you die Advocacy Centre for the Elderly 2017

How do you get a will prepared? You can Go to a lawyer to have him or her prepare a will for you Use a will kit (be very careful when using any will kit – laws governing wills are provincial; therefore the will must be prepared in accordance with Ontario law Advocacy Centre for the Elderly 2017

Can I make a will in my own handwriting? – Holograph Wills Yes.  A will that is ENTIRELY in your handwriting is called a “holograph will”.  If your will is completely written out in your own handwriting and your sign and date it, then it is a valid will in Ontario. You do not need witnesses for a holograph will. For a holograph will to be valid,  there must be evidence that the person making the will actually created the will. This might be proved through witnesses, friends, other handwritten documents that verify identity of the handwriting That the person making the will was mentally capable to make a will That the person making the will has expressed a wish that his/her estate be distributed to beneficiaries. Advocacy Centre for the Elderly 2017

What if you die without preparing a will What if you die without preparing a will? How is your estate distributed? When a person dies with a will, the estate is distributed according to the directions in the will. When a person dies without a valid will, Ontario's law on intestate succession (Succession Law Reform Act) sets out how the estate must be distributed Advocacy Centre for the Elderly 2017

How an estate is distributed if a person dies with no will To the spouse of the deceased , if living, the first $200,000 To the spouse and children, the excess over $200,000 shared according to specific rules; If no spouse, to the children and descendants of the deceased, if any; To the parents of the deceased if no spouse or descendants; If no surviving parents, to brothers and sisters, and children of the deceased brothers and sisters; If no brothers and sisters, then to living nieces and nephews To other more remote relatives Advocacy Centre for the Elderly 2017

What does the Estate Trustee need to do when a person dies? The estate trustee is responsible for making sure that appropriate funeral arrangements take place The estate trustee is responsible for making sure that your debts are paid from your estate The estate trustee is responsible for distributing the estate in accordance with the will Advocacy Centre for the Elderly 2017

Death Benefits There are benefits from the federal government, which may be available to a surviving spouse and dependent children of a deceased person and to the deceased person's estate. More information on these benefits is available from Service Canada Advocacy Centre for the Elderly 2017

Organ and Tissue Donation Trillium Gift of Life Network is a not-for-profit provincial government agency dedicated to planning, promoting, coordinating and supporting organ and tissue donation across Ontario, and improving the system so that more lives can be saved. Trillium Gift of Life Network was created by the Ontario government's Trillium Gift of Life Network Act, legislation designed to significantly increase organ and tissue donation in Ontario, and became operational in April 2002. Advocacy Centre for the Elderly 2017

Registering as a Donor There is more than one way to register as a donor. Download the Gift of life from the Trillium Gift of Life Website http://www.giftoflife.on.ca Visit a Service Ontario Centre; or Visit http://beadonor.ca/ Advocacy Centre for the Elderly 2017

Consent by person for use of his or her body after death 4.  (1)  Any person who has attained the age of sixteen years may consent, (a) in a writing signed by the person at any time; or (b) orally in the presence of a least two witnesses during the person’s last illness, that the person’s body or the part or parts thereof specified in the consent be used after the person’s death for therapeutic purposes, medical education or scientific research. Advocacy Centre for the Elderly 2017

If I have a signed Donor Card do You need to Register? A donor card is a paper card. Your decision to donate is only known to the extent that you share this decision with your family and friends. When you register your consent to donate organs and tissue, this information is stored in a Ministry of Health and Long-Term Care database. The ministry will disclose information about your decision to Trillium Gift of Life Network, Ontario's organ and tissue donation agency, for the purpose of ensuring that your decision to donate is known and respected. By registering your consent to donate, you ensure that your donation decision is recorded and is made available to the right people at the right time, and is shared with your loved ones Advocacy Centre for the Elderly 2017

If you don’t sign a donor card or register as a donor, are you considered as a “NO” for donation? No. If you are a potential organ and tissue donor your family will be approached by Trillium Gift of Life Network (and health care professionals) to discuss the option of donating your organs and tissue. Your family can consent to donate on your behalf, if you are unable to do so. Therefore, it is important that you share your donation decision with your loved ones, so that they can fulfill your donation decision in the event of your death. If you register consent to donate, this information will be shared with your family so that they can respect your wishes. Also, you relieve them of the burden of making this decision on your behalf Advocacy Centre for the Elderly 2017

Can your family overrule your decision to donate? It is the Trillium Gift of Life Network's practice to reaffirm an individual's consent to donate with the family. In almost all cases, families honour and respect their loved ones' donation decision if they are given evidence that it's what the donor wanted. Therefore it is important to register your consent to donate so that your family can be advised of your decision to donate Advocacy Centre for the Elderly 2017

Types of Donations Donations for Transplant Research Science Everyone can be a donor regardless of age, medical condition or sexual orientation Advocacy Centre for the Elderly 2017

Consent if Incapable or Post Mortem by Others If a person has not given consent in advance of death or is incapable of giving consent as determined by a physician and death is imminent, consent to donation may be given by: Spouse Children Parents Brothers or sisters Other Next of Kin Person lawfully in possession of body or administrative head of hospital UNLESS person above have reason to believe person who is subject of donation would have objected Advocacy Centre for the Elderly 2017

Thank You! Advocacy Centre for the Elderly 2 Carlton Street, Ste 701 Toronto, Ontario M5B 1J3 416-598-2656 www.acelaw.ca wahlj@lao.on.ca Advocacy Centre for the Elderly 2017