All About Estates

Dementia, Health Law and Discharge Planning Challenges

A clinical dilemma: a patient was diagnosed with dementia in the mild-to-moderate stage requested to be discharged home from hospital to live alone despite the opinion of the attorney for personal care and property that the patient is unsafe to do so. The clinical opinion was also that the patient could not live independently safely. This resulted in the need to confine the patient in hospital involuntarily under the Mental Health Act (MHA) until a safe discharge plan was confirmed. The patient appealed the involuntary confinement to the Consent and Capacity Board (CCB).

Prior to the to the CCCB Hearing, the patient recruited a family member who did not have authority as an attorney for personal care or property to move in with the patient in order to provide live-in care. However, the attorney for personal care and property opposed the plan, or any other relative becoming a live-in caregiver.

The question before the CCB was whether the patient was at risk of imminent and serious physical impairment according to the criteria set out in the MHA, and whether the patient could be discharged home to live with the proposed caregiver.

In my clinical opinion, the test for the appropriateness of confinement as set out under the MHA cannot be determined without reference to the Substitute Decisions Act (SDA) and the Health Care Consent Act (HCCA).

The reality of dementia is that the level of appropriate care is often dependent upon the patient’s financial resources. The attorney for personal care, who makes decisions about treatment and shelter, cannot make appropriate decisions without consulting with the attorney for property, who in turn will structure the financial management plan for the patient according to the patient’s care needs. In this clinical example, the attorney for personal care also had to make decisions regarding the patient’s medications for the behavioral and psychological symptoms of dementia since the patient was also deemed incapable to consent to treatment.

For hospitalized inpatients under the MHA, there is a mandate to assess their capacity to manage property unless there is a continuing power of attorney for property already in place, as was the case with this patient. However, the existence of a continuing power of attorney for property does not stipulate that the patient will not be assessed. Indeed, although there was no mandate to assess the patient, I nevertheless declared the patient incapable to manage property under the MHA: in my clinical opinion the patient failed the test of being able to understand the value of their property and lacked the ability to appreciate the potential consequences of decisions relevant to management of property.

In cases where there is no controversy over the issue of incapacity to manage property and there is a pre-existing continuing power returning for property, a letter from a doctor to the attorney for property confirming a clinical opinion of incapacity typically is often sufficient for the power of attorney document to take effect. This allows financial institutions to authorize the attorney for property to assume management of the patient’s property. In that scenario, there is no formal finding of incapacity and no formal rights advice or means of appeal.

In this case, I took the additional step of declaring the patient incapable to manage property under the MHA, as this ensured that the patient received advice regarding the right to appeal the finding of incapacity to manage property. In particular, this also gave the patient the right to appeal the involuntary detention in hospital.

The determination of continued involuntary confinement under the MHA due to the risk of imminent and serious physical impairment is not simply a matter of a safety evaluation. Stating that the patient has a proposed caregiver does not automatically mean they are safe to be discharged home. Rather, I suggest that all factors set out in the MHA and the SDA regarding the capacity to manage property and care needs should be considered by the CCB before reaching a decision.

A formal finding under the MHA of incapacity to manage property, despite the existence of a prior continuing power of attorney for property, may serve as a deterrent to elder financial abuse and undue influence to revoke and reappoint the power of attorney for property, a key concern for the attorney for property. My hope is that with a clinical finding of incapacity to manage property, the attorney for property will have comfort that another family member may move in with the patient and provide live-in caregiving without being able to pressure the patient into signing new legal documents.

Patients with dementia are often dependent upon substitute decision makers for the management of health care and property. The health care provider can only propose whether the patient is safe to leave hospital or not. Choosing where to live and with whom (outside of referring a patient to long-term care (LTC)) is not a choice for the health care provider: it is a decision of the substitute decision maker as defined under the SDA.

In my clinical opinion, the patient’s claim that another family member has agreed to move in to provide caregiving cannot overturn the need for involuntary confinement in hospital even if this appears to defeat the safety concern for imminent and serious physical impairment. Due to the patient’s lack of capacity to manage property, the decision regarding where to live in the community must be determined by the attorney for care, in consultation with the attorney for property.

If the patient is not willing to assent to the decision of the attorney for care to move to a retirement home (for example), with payment arranged by the attorney for property, then the alternative is to evaluate the patient’s capacity to apply for LTC housing under the HCCA. Failure of the attorneys for property and care to work together, and continued disagreement by the patient, could lead to a stalemate that may lead to litigation. Among other downsides, this would prolong hospitalization.

About Dr. Richard Shulman
Dr. Shulman is a geriatric psychiatrist at Trillium Health Partners and is an assistant professor at the University of Toronto. He is medical director of the Capacity Clinic and available for independent medical-legal capacity assessments.

1 Comment

  1. pauline Dankoff

    October 29, 2021 - 8:58 pm

    most informative

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