A frequent dilemma is the senior who is determined to remain living alone at home despite concerns that it may no longer be safe. What can one do about it? The first step is to enquire if there are power of attorney (POA) for property and personal care documents? If so, they must be reviewed to confirm whether the POA for property was active upon signing or if it is a springing (postponed) POA and if so what are the means for activating it? If there is no POA for property, requesting an assessment by an assessor from the Minister of the Attorney General is limited by the senior’s right to refuse to participate. Whether or not there is a POA for personal care, an assessment can be requested regarding the six elements of personal care under the Substitute Decisions Act (SDA)[i]; health care, food, living arrangements or housing, clothing, hygiene, and safety. However, once again the senior can refuse to participate in the assessment. Only a court order could force an assessment. A court order is usually the last resort as it would likely be part of a guardianship application, which is costly for the one pursuing guardianship and may only be justified in extreme cases. Furthermore, if the senior is suffering cognitive impairment yet is still independent in activities of daily living – personal care tasks of transferring out of bed, walking, toileting, washing, dressing and feeding – then the senior would not even be eligible for long-term care (LTC) which requires at least three hours of hands-on care per day for eligibility. In Ontario, only the coordinator from the Community Care Access Centre (CCAC) can access the senior’s eligibility for LTC, which includes an evaluation of capacity to apply for LTC. The senior may be found capable despite concerns for their safety. There is no recourse for third parties it is not permitted to appeal an evaluation of intact capacity. An alternative option for a structured supportive living environment may be a private retirement home, but these are not healthcare facilities and require the senior to be agreeable to move into a retirement home.
Requests for an investigation of the safety of a senior living alone can be made to the Office of the Public Guardian and Trustee (OPGT). The SDA provides the OPGT with the duty and powers to investigate “any allegation that a person is incapable” with respect to either property or personal care and that “serious adverse effects are occurring or may occur as a result.” If the results of the investigation are confirmatory, then the OPGT shall apply to the court for a temporary statutory guardianship. The scope of the OPGT’s mandate is limited to those situations where serious adverse effects are or may be occurring. The standard for what is a serious adverse effect is high. According to data published by the Law Commission of Ontario[ii] in 2013-2014, the OPGT received 10,574 calls to its investigation screening room (this number may include multiple calls referring to one person) from which only 214 investigations were completed and only 8 cases resulted in applications to the court for either permanent or temporary guardianship for property or personal care.
The bottom line is: encourage the elderly senior living alone to execute a POA for property and personal care and to do so in such a way that there is minimal potential for elder financial abuse.[iii]
[i] Substitute Decisions Act, 1992, SO 1992, c 30, <https://canlii.ca/t/l0gb>
[ii] Legal Capacity, Decision‐Making and Guardianship, Discussion Paper. May 2014. Part IV, Ch. 1D.2, page 222. Available online at www.lco‐cdo.org
[iii] Shulman, R.W. Financial Elder Abuse, Incapacity, and Inconsistencies in Implementation of Ontario Legislation. Health Law in Canada, vol. 35, no. 3, 64-72.
