Capacity Trumps – Bentley v Maplewood Seniors Care Society – Part II


Written on May 22, 2015 – 6:00 am | by Jasmine Sweatman

The BC court of appeal has released its appeal of this decision (we blogged on the lower court decision) in February 2014 regarding capacity and nourishment.

To recap, Margaret Bentley now 83 and with advanced Alzheimer’s has to be feed by spoon and drink by glass placed upon her lips.  The lower decision found Mrs. Bentley was providing consent when she opened her mouth after the spoon/glass where placed on her lips and she was not fed if she did not open her mouth.

The family’s argument was that Mrs. Bentley did not have capacity and therefore her substitute decision maker was entitled to refuse to provide consent for her to be fed. The argument was that Mrs. Bentley did not have capacity to understand the prompt of the spoon or glass and the reaction was a “reflex” rather than based upon conscious thought and informed consent.  The further argument was that the act of placing the spoon on her lips constituted battery (which in the end actually did not play a prominent role in the arguments).

The appeal decision upheld the lower court decision that the acts of “feeding” did not constitute battery nor was there a lack of capacity such that the SDM had a role to play in consenting to feeding – this in light of a power of attorney which included a “no heroic measures clause”, a request that if there was no reasonable expectation of recovery than no nourishments or liquids be given to her and the statement that: “In the event that mental deterioration is such that I am unable to recognize the members of my family, I ask that I be euthanized” (with the stated rational that Ms. Bentley “fear[ed] degradation and indignity far more than death”.

Mrs. Bentley is now in the seventh stage of the disease where the “brain appears to no longer be able to tell the body what to do” with her being slumped over in a chair or bed most of the time with eyes closed and not having spoken since 2010.

The court of appeal’s rationale was founded in the lower courts findings “expressly and implicitly that Mrs. Bentley is consenting to being given food and water by opening her mouth when a spoon or glass is held to her lips”; that no “ex post facto” reasoning was used as the “actual process of feeding cannot be artificially differentiated from the act of placing the spoon or glass at her lips to see if she will eat or drink because Maplewood does not go further when she does not open her mouth these actions are within the scope of her consent.”

It also pointed out that the lower court had not imposed a burden on the family to disprove consent; rather the court had found they had not rebutted the presumption of the capacity to consent.

With all of this the lessons seem to continue – patients are encouraged to record their wishes carefully if they want to make provision for their care and decision–making in their declining years.  However, this case, as others are saying, this is not enough and the courts want patients to obtain legal advice to review what exactly can be accomplished with these “living wills”, representative agreements, and advance directives. This is so, as where the Legislature has prescribed extensive substantive and formal requirements relating to these documents in order to protect not only the person in care but also her caregivers, it will not be open to a court to suspend or ignore those requirements (assuming compliance with the  Charter).

Until the Legislatures deal with these situations the average Canadian is left with the only option as being very explicit in what they want or do not want and to be creative in what may happen (for example, if Mrs. Bentley had considered she may be left in the state that she is with being kept alive by spoon feeding would she have wanted this – arguably not as it does appear contrary to the wishes she did go to great lengths to express in her power of attorney as interpreted by her substitute decision maker and family.)

Are we therefore back to the long list of “what ifs” scenarios being drafted in our documents or constant updating as new situation come to our attention?  What has happened to the philosophy of our legislation which is to support and enable substitute decision makers to make decisions in keeping the last known wishes – all of this is irrelevant and some would argue correctly (even if pushed by the author) in the name of capacity.  As long as the person is capable or as long as the presumption of capacity has not been rebutted the substitute decision maker cannot make the decision. Plain and simple.

Until next time,

Jasmine

Share and Enjoy
  • email
  • Facebook
  • Twitter
  • Google Bookmarks
  • LinkedIn
  • Digg
  • Delicious

    More on Key Wealth Management Trends for 2015


    Written on May 21, 2015 – 5:36 am | by Elaine Blades

    Last month, my associate Paul Fensom highlighted some interesting statistics on Will & Estate Planning from a report by CEB Wealth Management Leadership Council, titled: Windows on the Future 2015: Key Wealth Management Trends. Here’s some more information from the report I believe will be of interest to this audience.

    The report identified five emerging trends for the Wealth Management Industry:

    1. A growing mismatch between firms’ advice deliver models (in-person, email, phone, mail/print, client events) and the information seeking preferences (social media, mobile applications, portal, tablets) of their clients.

    2. Expanding advice on wealth and health to increase client peace of mind. For example, advisors now need to plan for the increasing longevity of their clients and the associated health care costs.

    3. Rethinking talent strategy to build the advisor force of the future.

    4. Creating capacity for advice by automating service.

    5. Building household relationships to prepare for client wealth transfer events.

    I find it very interesting that two of the five trends relate to “estates”. Although not specifically referenced, I suggest that planning for potential future incapacity (ensuring clients have prepared powers of attorney and/or inter vivos trusts and have proper and adequate insurance coverage in place) should be part of the wealth and health conversation – trend number 2.

    Trend number 5 is, of course, “all about estates”. The report cites an imperative to move to a proactive from a reactive approach and concludes: “as wealth passes to next generations, clients will demand more advice and turn to advisors for guidance on sensitive family and financial topics”.

    In turn, I trust the smart advisors will turn to, and refer to, participants of this blog and their peers to ensure clients are provided with the best guidance and advice on wealth transfer events.

    Share and Enjoy
    • email
    • Facebook
    • Twitter
    • Google Bookmarks
    • LinkedIn
    • Digg
    • Delicious

      Tags: ,

      Interest in capacity of older adults rapidly expanding beyond the Estates and Trusts world


      Written on May 20, 2015 – 9:00 am | by Ken Shulman

      Audrey Miller’s recent blog (When there is no POA for Care, May 13, 2015) reached out to readers to determine if there are guidelines or consistent policies or practices across the banking/trust /financial industries when dealing with capacity issues. This question can be also be expanded to the real estate industry where very old clients or their attorneys are making significant transactions with respect to substantial real estate holdings.

      The answer to Audrey’s question seems to be a resounding ‘NO”. I have recently been asked to speak at a number of sessions involving banking officials, financial advisors and Certified Financial Analysts (CFA’s) and together with Kim Whaley and Ameena Sultan presented to a large group of real estate lawyers at the Law Society real estate summit. It is clear that a wider spectrum of professionals who deal with elderly clients are increasingly uncomfortable with situations in which the capacity of older adults is in question and where there is potential for undue influence or even abuse of older clients when POA’s are acting on their behalf. These professionals are looking for direction and guidance. Sadly, I cannot help them other than providing the ‘red capacity flags’ list that I blogged about recently. In contrast to the world of estate planners and litigators, these professionals have not addressed these issues in a substantial way and are concerned about their liability as well as the best interests of their elderly clients. The ‘red flags’ are only the beginning of a process that begs for more direction. There seems to be a gaping hole in the guidelines and policies for these important arenas where the disproportionate wealth held by older adults is being re-distributed. At the recent CFA Wealth Conference, one of the organizers suggested that it would be worthwhile to strike an informal working group of different disciplines to begin addressing this deficiency in the Financial industry. The same could be apply to many other arenas at a time of growing concern and interest in how we as a society deal with older, frail and vulnerable individuals. Unfortunately, this applies to the medical profession as well where one might expect a greater level of knowledge, expertise and comfort.

      On this very topic, ‘Capacity and undue influence’ is the title of a recently published text by John Poyser, an estate lawyer in Manitoba (Carswell, 2014). It is an excellent resource for Estate lawyers and planners. This type of resource and other practical guidelines are clearly needed into other related areas that deal with these very same concerns.

      Share and Enjoy
      • email
      • Facebook
      • Twitter
      • Google Bookmarks
      • LinkedIn
      • Digg
      • Delicious