A few weeks ago, our colleague, Paul Fensom, blogged about his neighbor who had to move under unfortunate circumstances. This neighbor’s father, suffering from Alzheimer’s, had to be moved to a long term care facility but as the father had never finalized powers of attorney, the PGT became his guardian for property and the daughter who lived with him was put out of the home so the house could be sold all despite the father’s informally expressed intention that she be able to remain there for her lifetime (and receive the house as a gift following his death).
This story reminded us of the importance of planning now and before it is too late and of the importance of careful thought in selecting the method by which someone’s capacity is assessed, particularly where no power of attorney is in place. It also got us wondering about the assessment process of the father’s capacity, and was there a chance there could have been a different outcome.
The capacity assessment in the neighbor’s case was likely conducted under statute, as opposed to privately. This statutory assessment under the Substitute Decisions Act or the Mental Health Act, leading to a finding of capacity had the automatic consequence of the appointment of the Office of the Public Guardian and Trustee (“PGT”) as guardian for property. A private capacity assessment would have carried with it no such immediate consequence, leaving an opportunity for a someone close to the incapable person (if there was one) to apply for guardianship and putting forth a plan that would have better reflected (if possible) the incapable father’s expressed wishes.
An assessment under the Substitute Decisions Act, through section 17(1) provides the added benefit of access to the relatively simple process by which the incapable person’s spouse or partner; relative; attorney under a continuing power of attorney; or a trust company can apply to replace the PGT as the person’s guardian; whereas a finding of incapacity under the Mental Health Actdoes not.
These opportunities are not, we recognize, always available. In the neighbor’s case it may be that the method of assessment would not have changed the outcome such that selling the house may have been the required course of action; however, the important lesson from this is plan, plan and plan in advance in order to maximize the outcome.
Where there is no “will” (or power of attorney) there may still be a “way” to ensure that an incapable person’s needs are met in accordance with his or her last known capable wishes. The method chosen to assess capacity (and the possible consequences) can significantly impact the process and outcome.
by Jasmine Sweatman
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