All About Estates

Statutory Guardianship of Property vs. a Continuing Power of Attorney for Property: They are not the same!

My June 2017 blog described that most seniors appoint a continuing power of attorney for property (CPOAP), partly to avoid having the Office of the Public Guardian and Trustee (OPG&T) assume the role of statutory guardian of property under the Substitute Decisions Act (SDA) or the Mental Health Act (MHA) should the person become incapacitated. The majority appoint a family member who they assume they can trust. I questioned at that time if appointing a family member as CPOAP is always the best choice because one cannot necessarily anticipate the potential conflicts of interest that arise within families when it comes to management of property.

However, recent personal correspondence from legal counsel for the OPG&T suggested to me that more individuals pursue voluntary assessments of capacity to manage property by an assessor of the Ministry of the Attorney general in order to facilitate statutory guardianship by the OPG&T than I had believed (which I find astonishing). My recent experience with two hospital inpatients under statutory guardianship of property has made me re-examine the different types of substitute decision makers.

It is not a question of whether CPOAP or statutory guardianship is better. Rather I have discovered that statutory guardianship of property by the OPG&T is in fact not the same as having a CPOAP. So what is the difference?

Under section 31 (1) of the SDA, a guardian of property (which includes the OPG&T as statutory guardian) has the power to do on the incapable person’s behalf anything in respect of that person’s property that the person could do if capable, except make a will. The same powers are given to a CPOAP.

Common duties of substitute decision makers (be they CPOAPs or statutory guardians) include signing contracts, including rental agreements for a group or retirement home. However, my recent experience with the OPG&T is that they refuse to sign rental agreements. Rather, the OPG&T expects two elderly inpatients hospitalized with chronic schizophrenia, who have no family and no social supports, and who were deemed incapable of managing property under the MHA, to independently seek out appropriate shelter and to sign the required rental agreements. The OPG&T will then facilitate the payment for those rental agreements from the patients’ funds. Of course, if these patients were capable of finding appropriate shelter we would not have needed the OPG&T in the first place! Instead, these patients remain indefinitely in hospital with no place to live. One will require institutionalization in long-term care (LTC); this patient has now been in hospital 144 days waiting for LTC, and will likely block another patient’s ability to access that bed in hospital for anywhere from 3 to the next 18 months. The other patient remains in hospital indefinitely (205 days so far) because of ineligibility for LTC because of intact ability to perform the activities of daily living independently.

Today at Mississauga Hospital, our hospital bed occupancy is at 118% (18% over capacity using unfunded beds). We have 38 admissions in the Emergency Room waiting for hospital beds, and we have 121 beds occupied by alternative level of care (ALC) patients waiting for LTC.

In my opinion, the crisis today in health care is not cancer or opioids or any other cause for which there are popular fund raising campaigns. Rather, it is the ongoing lack of LTC beds and outrageous ALC hospital occupancy rates impeding access to care. It is time for demanding accountability from government to help improve the efficiency and accessibility of hospital care for all.

We need substitute decision makers, whether they be a CPOAP or the OPG&T, to be partners with us in health care and not to act as barriers to patient discharges out of hospitals.

About Dr. Richard Shulman
Dr. Shulman is a Geriatric Psychiatrist, and is the Service Medical Director for Seniors Mental Health Services at Trillium Health Partners (Mississauga Hospital, Credit Valley Hospital and Queensway Health Centre). He is available for independent medical-legal capacity assessments. He is an assistant professor at the University of Toronto. Email: Richard.Shulman@thp.ca

2 Comments

  1. Terry Zavitz

    October 26, 2018 - 7:41 pm
    Reply

    Wow. Incredible article!

  2. Pauline Morris

    October 29, 2018 - 11:50 pm
    Reply

    No surprise, Dr. S, since OPGT’s role is not to make care decisions or facilitate arrangements (i.e, the social work or family support roles) if they are mandated as the Statutory Guardian. As they see it. As to care decisions, on an ad hoc basis they will approve, but not necessarily determine, the care plan. Mostly, they see the role as managing money, not managing lives. I have felt for a long time that this is a service gap. If there is no family to make care plans, or a helping network of some sort to guide the person as to choices, the person falls between the cracks. Perhaps it is time to reconsider the role, and add a support service network to OPGT, so plans can be made as well as paid for from the person’s assets. There are support networks for those with a psych illness, if they qualify, are willing to engage with a team, or can overcome the service barriers, time lags, wait lists and rules. Housing is a huge issue, especially for those with dual diagnosis and age.

    I don’t think this is an issue of OPGT Guardianship vs CPOA definition. It’s a service gap, not a role difference. Don’t count on OPGT to take on the role of a family….they sure don’t see it that way.

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