Introduction

There are some things worse than death and one of them is how you get there.  Losing your mental capacity to make decisions about your health care and financial matters has become a major concern as our population lives longer.

History

What happens when we lose the mental capacity to make our own decision?  Contrary to popular belief, the power to make those decisions for you does not automatically go to one’s spouse, significant other, or children. In 1978 the Alberta Government passed the Dependent Adult Act (DAA).  This Act allowed the Court to appoint someone (usually a family member) to be the Guardian and Trustee for the person who could no longer make their own decisions (Dependent Adult).  Protection for the Dependent Adult was carried out through periodic Court reviews.

In 2005 the Alberta Government decided to carry out a review of the DAA. Public meetings were held across Alberta and information was also obtained from groups working with Dependent Adults. The review process resulted in the Adult Guardianship and Trustee Act (AGTA) which replaces the DAA. The AGTA gives more flexibility to families trying to help a family member who has lost his or her mental capacity to make decisions.

AGTA

The AGTA is a major shift in assessing mental capacity. Under the DAA, mental capacity was either there or not there. The AGTA recognizes mental capacity as a continuum with full mental capacity at one end and full loss of capacity at the other end. In between the ends of the continuum are all forms of diminished capacity which may be temporary or permanent.

Part One of the AGTA sets out the principals governing the administration of the Act.  The goal of the Act is to promote independence and, to the greatest extent possible, allow an adult to be assisted using the least intrusive measures.

The AGTA provides for the following:

1. Supported Decision Making (SDM) – in certain situations, an adult with capacity may still benefit from having another person help them make decisions. As people get older, it can be harder for them to understand professional or technical information. Language can often be a barrier in making decisions.

The AGTA allows a person who has the capacity to make decisions to prepare a document called a Supported Decision Making Authorization in which they appoint someone (Supporter) to assist them in making decisions.  The Supporter is allowed access to relevant personal information about the adult, to speak on behalf of the adult, and to assist the adult in making and communicating a decision. SDMA only applies to personal matters, including health care.  It does not apply to financial matters or property.

1. Co-Decision Making (CDM) – if:

–       an adult ‘s capacity is significantly impaired, and

–       the adult could make a decision with guidance and support, and

–       the SDM is not adequate,

the Court may decide it is in the best interests of the adult to have a Co-Decision Maker.

A CDM Order will be of use when the adult does not need a full Guardianship Order. A capacity assessment is required to show the adult, although significantly impaired, would be able to make an informed decision with the assistance of a suitable Co-Decision Maker. The adult and the Co-Decision Maker must both consent to the Order. The Order will terminate upon the adult withdrawing their consent. The CDM Order does not apply to financial matters.

1. Guardianship – this applies when the adult does not have the capacity to make a decision on a personal matter. If the Court determines less intrusive measures cannot be implemented and it is in the best interests of the adult, the Guardianship Order will be issued.

1. Trusteeship – if it is shown:

–       an adult does not have the capacity to make decisions on their financial matters, and

–       less intrusive measures will not be adequate,

a Trusteeship Order can be obtained. The Order will protect the adult by setting out accounting requirements and the time period in which the Order must be reviewed.

Avoiding the AGTA

The AGTA will give families and the Court more flexibility in assisting those persons whose ability to make decisions has diminished. However, the Court process will continue to be an emotional and costly exercise for family members as they arrange for the necessary capacity assessments, guardianship plans, and trusteeship plans to be filed with the Court.

It is very challenging to deal with a family member who is losing or has lost his or her mental capacity. To make it easier for family members and to avoid the Court process, you should have an Enduring Power of Attorney and Personal Directive as part of your estate plan.  Hopefully, you will never have to use these documents.  If they have to be used, they are worth their weight in gold, as they will allow family members to avoid the Court process.

These documents have been referred to in previous articles in this column. Simply put, the Enduring Power of Attorney allows you to choose someone (Attorney) whom you would like to have assist you in your financial affairs.  You can appoint someone to immediately act as your Attorney or you can arrange for the Attorney to act only after it has been determined you have lost mental capacity to look after your financial affairs.

The Personal Directive allows you to choose someone (Health Care Agent) to make decisions on your health care if you become mentally incapable of making those decisions. As long as an adult has mental capacity to make decisions on his or her health care, it is not possible to give this power to another person.

Conclusion

The AGTA will be a useful tool to assist families in Medicine Hat in dealing with a family member who is losing or has lost mental capacity. We can make it much easier for families to deal with this situation by making sure an Enduring Power of Attorney and Personal Directive are included in your estate plan.  If this is not the case, you should contact your estate planning lawyer while you still have the capacity to do so and give instructions on these documents.