In our practice, we frequently meet people who are concerned about their affairs should they develop Alzheimer’s or Dementia; many have experienced these conditions through loved family members and friends.  News sites were reporting last week on the popularity of a new tool:  Ohio State University’s Wexner Medical Centre is currently offering an online test.  Known as “SAGE”, the test is available in English, Italian and Spanish.  You can find it here:

http://medicalcenter.osu.edu/patientcare/healthcare_services/alzheimers/sage-test/Pages/index.aspx

The test is of course, for informational purposes only, and anyone with concerns about their health, or those of their family members, should contact their health care provider.  Early detection can allow a person to plan and develop a supportive network.

The CBC covered the test here:  http://www.cbc.ca/news/health/alzheimer-s-online-test-crashes-university-site-1.2497401

Part of my practice involves obtaining committeeships for adults (also known as adult guardianships) who have lost mental capacity, which requires a court application.  While often the family members are in agreement about what is best, sometimes family members feel strain from not knowing their family member’s wishes for their long-term well-being.   When it comes time to make a court application, it is helpful to be able to lay out the person’s wishes, as documented by family members and others.     

If you are engaging with estate planning, it is a good idea to have some significant discussion with your chosen decision-makers (i.e.  anyone you nominated in a Representation Agreement and/or Power of Attorney,   family members, and also those you suspect might cause some fuss)  about your wishes, and to have some of those wishes legally documented.    It is now common for family members to live significant distances away, and family members may have acrimonious relationships with each other,  and thus not be fully aware of the adult’s wishes. 

Here’s some topics to consider:

1.  Do you have any views on where you want to live?  Do you want to stay at home as long as possible?   Do you wish to move in with particular family members, or do you want to live in a care-home with your spouse, a sibling,  or a particular friend?   For example, if you live in Vancouver, but your children reside in Nanaimo and Victoria – where do you prefer to live, and why?    
2. Who do you want to be able to visit?  If there is family acrimony, for example, between your current spouse and your children from a previous marriage, do you want to give some directions about visitation?  Are there close friends that your children might not know about because they live elsewhere?   You might want to create a contact list and share it.
3. Are there any activities that are important to you, even if you are no longer able to fully participate?  For example, you might be a member of your church choir for many years, and if the day should come where you are no longer able to participate, you would appreciate being taken to performances. 
4. Is your religion shared by your family and friends?  If you have differing views, you should make them known while you can, and explain how they can help you to continue to observe your faith. 
5. If you have an illness, and you think it may worsen, you may wish to discuss possible treatment options.  For example, if you are diagnosed with cancer, and become incapacitated, what treatment (if any) do you wish to have?    Family members might have conflicting views about what your views are based upon conversations at different times in your life, and might be unsure how to help you.
6. Do you regularly deal with certain professionals?  Do you have a specific financial advisor or accountants? Do you deal regularly with a specific person at the bank?  How are your finances organized?  Where do you draw your income from?   Consider creating a master information sheet with this information, and store it somewhere it will be found.
7. Do you own anything outside of Canada?  Did you buy speculative real estate on your last trip to Mexico, or do you have a pension from when you lived in Italy before you immigrated to Canada?  Your family might not know about assets or income from outside of Canada, and might not be able to read the paperwork if they should find it later and you are no longer able to explain.
8. What legal documents are already in place, and have they been used?   If one child has been granted a power of attorney, and used it at your direction, are there any decisions that might generate disputes later?  For example, did you tell your daughter to sell the cottage and invest the proceeds in a specific way?   Did you execute a Power of Attorney on or before August 31, 2011, which is silent on remuneration, but you have been authorizing your son to take a monthly amount for helping you?   You may wish to consult a lawyer about having the document updated, or to have the decisions documented to prevent later disputes. 

 In addition to being important topics to discuss, many of these items can be documented in a carefully drafted Representation Agreement, Advance Directive, or Power of Attorney.   Doing so may ease the burden on your family, and give you some comfort that your wishes will be followed.

I am frequently approached by people who have family members diagnosed with debilitating conditions like dementia or Alzheimer’s.   In addition to the daily challenges of helping these family members with their day-to-day needs, such as medication and personal care, these family members are faced with needing access to the person’s finances to pay for the nursing care, medications, and more.    Usually the person’s assets are in that person’s name, and unless there is a valid enduring Power of Attorney, the family cannot access the assets to pay for care, nor can they sell the person’s home if necessary.  Because the family member no longer has legal capacity, it is too late for him or her to execute a Power of Attorney or Representation Agreement, under which he or she could nominate who she wanted to make decisions for her. 

In these kinds of cases, a committeeship (Adult Guardianship) is the best course of action.  A committeeship is a way of protecting a vulnerable adult who is no longer capable of managing him or herself, his or her affairs, or both, under the provisions of the Patient’s Property Act.  The adult’s vulnerability may stem from the gradual onset of a condition, like dementia, or suddenly, such as following an accident.  Once a person is appointed committee of the vulnerable person, he or she  will be granted the ability to make decisions regarding the vulnerable adult’s person (health care, residence), the person’s estate (financial decisions), or both, depending upon what is granted by the court.  More than one person can be appointed committee.

 In a simple case, a brief court appearance by a lawyer is required to have someone appointed committee.  The court will base its decision on what is in the best interest of the vulnerable adult, and in making this decision, the Court will review evidence, which includes:

• the sworn statements (called affidavits) of two medical doctors regarding the vulnerable adult’s capability, diagnosis and prognosis;
• a sworn statement from the applicant setting out the vulnerable adults’ family, residence, and financial situation;
• the consent from other affected family members, if possible; and 
• the position of the Public Guardian and Trustee, which reviews the application before it goes before the judge. 

 The Court will make an order if it is in the best interests of the vulnerable adult, and will consider:

• whether immediate family members are in agreement;
• whether there is any conflict between family members or between the family and the adult;
• what is the level of previous involvement with the vulnerable adult;
• what is the proposed committee’s level of understanding of the vulnerable adult’s current situation, and will be able to cope with future changes;
• whether the proposed committee will provide love and support;
• whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the vulnerable person’s benefit;
• who is best to advocate for the vulnerable adult’s medical needs;
• the plan of care and management for the vulnerable adult and his or her affairs.

 In  the usual case, the evidence is presented in written form and applicants do not have to attend the hearing.   Depending upon the family relationships and the person’s financial situation, the court may require them to post a bond in security for their management of the assets. Once made committee, the applicant will also have to have their accounts of the person’s financial assets reviewed on a regular basis.

As the holiday season approaches, many of us are spending time with our elderly family members that we may not see as much as we like during the rest of the year.  It is a good time as well to assess how these family members are doing, and whether they might need assistance.  If the person has an Enduring Power of Attorney or Representation Agreement, it may be worth discussing if some assistance is warranted.  Here is a short list of things to look for if you have any concerns:

1. Are they oriented to day and night?  Do they know the date? Do they know the time? Are they showing any signs of confusion?
2. Are things in the correct place?  We all misplace things from time to time, but is there a greater cause for concern?
3. Are the “basic”  things in the home?  Is there an assortment of healthy food, toiletries, etc?  Are the utilities working?
4. Are the bills being paid?  Is the mail being attended to?  Are there any signs that they are having trouble financially, i.e. can they pay their bills on their own or do they need assistance? Do they have the financial resources to support their present mode of living?  Is there any sign of financial abuse by other family members or outsiders?
5. Have they seen their medical team recently or regularly?  Visits to the doctor, dentist, specialists may be difficult for some.  Do they have their medicaiton and can they manage it?  Do they understand any health decisions that need to be made?
6. Are they looking after their safety needs?  Can they manage the stairs, if necessary?  Are the windows and doors easy to manage and keep secure?

If you are concerned that your elderly family member cannot look after their finances or their person, and there is no Enduring Power of Attorney or Representation Agreement in place, it may be time to consider a Committeeship (Adult Guardianship).  Take notes about your observations, and if possible, the names of any doctors your family member sees. 

I recently read an article about a dispute between the daughter of a 90 year-old crash victim, who suffered brain damage and spinal cord injuries, and his medical team.  The daughter was the man’s substitute decision maker. According to the article,  the daughter “wanted the hospital to do everything possible to treat her father and extend his life.  Her father, she said, is a Holocaust survivor who would want all steps taken to keep him alive.  But internal medicine specialist Dr. Carl van Walraven believed aggressive measures were not in the best interests of his patient, identified only as GS.”  See the whole story here:  http://www.vancouversun.com/news/Hospital+wins+right+withhold+heroic+measures+from+year+crash+victim/7025896/story.html

This is clearly a sad case and we won’t comment on the dispute.   If the patient was unable to communicate his wishes, it is an example of why we recommend that adults create and execute Representation Agreements (an “RA”), made under the Representation Agreement Act in BC.

First, by making an RA, a person gets to select for himself or herself who will be the decision maker in the event that the person is unable to make his or her own decisions.  In this case, the patient might have chosen his daughter; he might have chosen someone else.  By actively choosing someone, he might have discussed with that person what his values and beliefs were with respect to medical treatment.   He would also have had an opportunity to set out in writing in the RA what types of treatment he did and did not want from his medical team, and his philosophy towards end of life (i.e. “no heroic measures” versus a desire to have all intervention attempted.)   We frequently include specific treatments that our clients wish to have or forego – from the use of aversive stimuli to participation in experimental health care.  We recommend clients speak with their doctors to ensure they understand the medical terms and the ramifications of their choices, before the need arises.

Some people are concerned about handing over their medical decision making to someone.  In BC, there are also safeguards in the Representation Agreement Act regarding the use of the RA by the designated decision-maker.  For example, the Representation Agreement Act contains provisions regarding to objections.  In Section 30, a person can object to the Public Guardian and Trustee of BC (“PGT”)  if there is reason to believe that the “making, use or revocation of a representation agreement … is clearly inconsistent with the current wishes, values, beliefs, or best interests of the adult who made, revoked or changed the agreement (s.30(1)(c); or if “anything improper has occurred in the making, use or revocation of a representation agreement,”  (s. 30(1)(e).  There is also specific criteria for making an objection in s.30(1)(h)and (i), which provides for an objection if

 “s.30(1)(h) a representative is

 (i)  abusing or neglecting the adult for whom the representative is acting,

 (ii)  failing to follow the instructions in the representation agreement,

 (iii)  incapable of acting as representative, or

 (iv)  otherwise failing to comply with the representation agreement or the duties of a representative,

 (i) a representative has given or proposes to give consent to health care that is not authorized by the representation agreement,”

On such an objection, the PGT will review it and has options for action, including conducting an investigation, applying to court for orders, or taking other actions considered necessary (see sections 30-34). 

The bottom line:  if you have specific views on what should happen, in the event you can’t advocate for yourself, you should consider drafting a RA.  It might save your family and friends a lot of difficulty.