Each month Murphy Battista holds information seminars at the Personal Injury Resource Centre on legal issues that commonly arise in everyday life. Last month, I gave a presentation on substitute decision making with a specific focus on powers of attorney, committeeships, and representation agreements in the wake of traumatic brain injury. Although nobody wants to have to make use of these legal tools, they often prove indispensable in situations where a family member or loved one’s mental capacity is impaired to a point where they can no longer adequately take care of themselves or they lack the legal capacity to make decisions.
This blog post summarizes my seminar.
What is Substitute Decision Making?
Substitute decision making is a legal process that allows a person to make decisions on behalf of another person. Generally, it is an option to consider when someone cannot adequately make decisions about his or her finances, legal affairs, personal well-being or health care. Often the issue of substitute decision making arises in response to a trauma, brain injury, development delay, drug or alcohol abuse, psychiatric illness, dementia or neurological disorder.
What is “capacity” and how is it defined?
Capacity refers to an individual’s ability to understand the information necessary to make a decision and to appreciate the consequences of making that decision. The definition focuses on the process of decision making rather than the outcome. If a person’s capacity is called into question the outcome is ultimately decided by a judge and is assessed based on medical information, information from family members, social workers, and other experts, and the individual’s interactions with the person asking to be given decision making authority.
Powers of Attorney
Power of attorney (POA) refers to a legal document appointing another person, referred to as an “attorney”, to deal with an individual’s business and property and to make financial and legal decision on their behalf. A POA can be tailored to be very specific or very broad and is relatively inexpensive and quick to prepare. More than one attorney can be appointed.
A disadvantage of powers of attorney is that they cannot be used to make or assist with health care decisions. Moreover, there is no formal monitoring of the attorney’s conduct, allowing for potential misuse. It is also important to note that a power of attorney is no longer valid if revoked, the donor dies, or a committee is appointed.
A representation agreement is a legal document created under the Representation Agreement Act in which an individual appoints someone as his or her legal representative to handle financial, legal, personal care, and/or health care decisions. The representation agreement is a contract between the individual and the representative.
An advantage of a representation agreement is that it allows the affected individual to continue to make their own decisions and merely receive the help of the representative when needed. Further, the individual is able to choose their own representative who will be monitored. Finally, a representation agreement can be used for both financial and health care decisions. A drawback of representation agreements is that they are more expensive to prepare and often more complicated than POAs. Additionally, a representation agreement cannot be used to deal with real property.
Note that, similar to a POA, a representation agreement ceases to be of effect if revoked or if a committee is appointed.
A committee is essentially a guardian that makes decisions for an adult deemed mentally incapable of making decisions regarding their own health care, personal affairs and, in some cases, financial and legal affairs. The appointment of a committee is carried out by the court and requires affidavits from two medical practitioners stating that the affected individual is incapable of managing themselves and/or their affairs.
An advantage of a committeeship is that the activities of a committee are monitored by the Public Guardian and Trustee and can be monitored by the Court if necessary. Disadvantages of a commiteeship are:
- the process of appointing a committee is often more expensive and takes longer than representation agreements or POAs,
- usually the affected individual has no input as to who the committee will be,
- it must be revoked by Court order and cannot be revoked by the individual,
- the individual affected has no legal input into their financial decisions or health care, and
- the committee is entitled to remuneration for their services.
Want more information?
Below you will find a list of some helpful websites that contain more information regarding substitute decision making. You are also welcome to contact me.