The Substitute Decisions Act sets the frameworkfor dealing with one's capacity to make decisions about either property orpersonal care and also governs what happens if a person is incapable.
Nowadays many clients know the importance of
having a will, a power of attorney, and living wills, says Suzana
Popovic-Montag, a partner in the
"While there is definitely an awareness, it's
still a matter for us as lawyers to educate our clients about the effects of
these documents. We need to take this education to an extra level so that the
client really understands the consequences of appointing someone. They need to
understand what could actually transpire if they are not mentally capable of
handling their own affairs, whether it's their property or their health."
Obviously, says Popovic-Montag, drafting a
power of attorney is a very serious delegation. There's tremendous authority
being vested in someone on behalf of your client, authority that could be
misused or abused.
Given this scenario, what we're seeing as
lawyers drafting these documents is a real caution in the bar itself," suggests
Popovic-Montag. "The reason is that whether or not your client, as the grantor
of the power of attorney, has capacity can be a difficult legal question to answer
when challenging or defending an existing power of attorney.
"For us, as lawyers, generally the expectation
is almost a standard of perfection. Solicitor negligence cases impose a high
standard across the board. You want to ensure you have personal protection as a
lawyer, while at the same time you want to see your client's wishes upheld and
not overturned."
She
refers to the recent Ontario Superior Court decision Fareed v Wood, which
"illustrates a situation wherein the court found a long-time solicitor, who was
also appointed an attorney for property, negligent and in breach of his
fiduciary duties both as attorney and solicitor. The case is also noteworthy in
that it suggests that an attorney has full responsibility for a grantor's
financial affairs as soon as he or she starts to act as such, notwithstanding
that the grantor herself 'gifted' away most of her estate during her lifetime
while she was most likely capable."
There is a particular sensitivity lawyers must
use as they draft these documents.
"We're not trained as doctors or psychiatrists.
The issues around capacity are really very emotional and they can be very
expensive and litigious," says Popovic-Montag.
She says she documents her conversations with
clients and protects herself as best she can.
"Whenever I have an elderly client who wants a
new will or power of attorney, I will consider a possibility of having a
capacity assessment done. This protects me as a lawyer and also helps uphold
the client's will if it is later challenged. The assessment offers proof of the
client's capacity to make decisions at the time the will was done."
Caution appears to be spreading throughout the
trusts and estates bar.
"I've heard that some lawyers are actually
videotaping clients about their wishes for their wills. I haven't heard of
lawyers doing this for power of attorney," she adds.
Popovic-Montag feels videotaping could prove to
be a double-edged sword.
"If there later is an issue about capacity, the
tape could be used by both sides in the dispute," she contends. "Elderly people
can have both good and bad days in terms of their capacity."
Another caution concerns issues of
confidentiality, she adds.
"When we draft wills, we know that privileges
of solicitor-client survive death, but when taking instructions for power of
attorney, the instructions may themselves be covered by some cloak of
confidentiality.
"For example, it's anticipated that a will
ultimately will be a public document, yet similarly with a power of attorney,
we want to be careful to keep in mind issues of
Mary Louise Dickson agrees that more clients
are giving instructions as to what they want should they not be able to speak
for themselves. "The difficulty is that, with the power of attorney for
personal care, the medical field is advancing so rapidly.
"We used to see these documents regularly refer
to 'no heroic measures'," says Dickson, a partner at Dickson MacGregor Appell
LLP in
"But what used to be seen as heroic measures
may today be much more routine. The problem is that the attorney is put in a
very difficult situation trying to determine what the person meant by heroic measures."
Also, with regard to capacity, in today's
medical world a person could be incapable and in a critical state, then be
stabilized and be capable again.
"The onus is on us as lawyers to really explain
all these scenarios to our clients. We need to get it across to our clients
that the key is to appoint someone they trust and keep them up to date with
their current wishes. Also, to suggest to clients that they consider where the
attorney lives. Clients need to have an attorney who is available, who has
ready access to an institution the client is likely to be in, whose values
accord with their values and is likely to be there when the client needs them."
Dickson suggests that lawyers also need to
explore the sensitivities of the disabled.
"The disabled feel very vulnerable when it
comes to the healthcare system," she says. "They feel the medical system does
not value their lives as much as the non-disabled. They are concerned they may
not be treated as aggressively and it's therefore very important for the
disabled to appoint a substitute decision maker who will advocate for them.
"Actually, I think this advice really applies
to all clients. We need to suggest to clients that 'if you are not able to
advocate for yourself, you need a strong-willed person who will make the proper
decision. The decision may be not to treat and to let you go, but the attorney
needs to be in your corner when you can't advocate for yourself.' I think this
is a very important message to impart to our clients."
