Context Guiding principles Decision-making options Capacity - PDF document

Adult Guardianship & Trusteeship Act Replaces 30-year-old Adult Guardianship and Dependent Adults Act (DAA) Trusteeship Act (AGTA) Needs of Albertans are changing g g – New Act balances autonomy and protection – More choice for adults and their families – More sensitive to the needs of the community and the health system 1 2 Agenda � Context � Key concepts Context � Guiding principles � Decision-making options � Capacity assessment 3 4 Canadian Context Alberta Context � Other provinces’ and territories’ legislation � Aging population � Legislative reforms of 70s, 90s, and 2000 on � Immigration: new Albertans decision-making tools for incapable adults � Changing roles of families: sandwich generation � Societal shifts towards: � Societal shifts towards: who does not live close by who does not live close by – Personal liberty and Charter rights for all citizens � Demands for more decision-making options tailored to individual needs – Increased advocacy by client populations – Families as decision-makers and providers of support � Advancing technology and better access to information – Government as oversight and decision-maker of last resort 5 6 1

What did the DAA provide? � Guardianship and Trusteeship: – Court process for appointment Key – Family/friends as preferred authority over Public Guardian or Public Trustee Concepts Concepts – Certificates for appointment of Public Trustee – Interested parties can ask for a review of the Court Order 7 8 Key Concepts � Capacity is on a continuum – Capacity is the ability to make decisions for yourself Guiding � AGTA has new decision making options Principles Principles – Designed to provide as much autonomy as possible � AGTA balances autonomy with protection – More safeguards, new complaints and investigation process 9 10 Guiding Principles Guiding Principles � Capacity is presumed � Autonomy is to be maintained through least intrusive and least restrictive measures – Regardless of age, disability, etc. – New decision-making support options � Communication method is not relevant � Decisions are to be based on best interests to determination of capacity and how the person would have made the – Hearing aid, sign language, technology decision if capable – What are the adult’s values and beliefs? 11 12 2

Decision-making Continuum Temporary Guardianship/ Adult Makes Co-Decision-Making Trusteeship Decisions Personal Supported Specific Decision-Making and Guardianship, Trusteeship and Decision-making Emergency Decision-Making Protection Authorization Decision making Decision-making Options Significant Temporary lack Lacks Long Has Capacity Capacity of Capacity Term Capacity Impairment Range of Capacity 13 14 1. Supported Decision-making (new) 2. Co-decision-making (new) Capable Incapable Capable Incapable � The adult is capable—they make their own � Adult’s ability to make decisions is significantly decisions impaired p � They choose someone to help them: – Adult can make decisions with good support � The adult and the co-decision maker make – Find information decisions together – Make decisions – Communicate their decisions 15 16 Court Applications 3. Guardianship (updated) � Application submitted to the Office of the Capable Incapable Public Guardian, not the Court � Adult is incapable of making their own personal � Need two references and a police decisions records check records check � Court appoints someone to make personal � Need a guardianship plan decisions on behalf of the adult � Someone from the Office of the Public – Usually a trusted friend or family applies Guardian will visit the adult to get their views – The Office of the Public Guardian can become the guardian as a last resort 17 18 3

5 . Emergency Health Care (updated) 4. Specific Decision-making (new) Capable Incapable Capable Incapable � Health care system needs a one-time decision: � Adult needs emergency health care 1. health care treatment or � Adult cannot provide consent 2. temporary admission to or discharge from a residential facility � Physician can make the decision � Adult is unable to make a decision (eg., stroke) Where practical, physician must consult with a 2 nd – � Physician or nurse practitioner can choose “nearest physician or health care provider relative” based on a ranked list to make the decision 19 20 6. Temporary Guardianship (updated) Capable Incapable Financial � Only for urgent or high risk cases Decision-making Decision making � Ad lt d Adult does not have capacity to make decisions t h it t k d i i � Options Fast track to Court � Temporary guardian appointed for 90 days 21 22 Financial Decision-making Options � Decisions about finances and property � No continuum of capacity Capacity � Trustees submit a trusteeship plan as part of the Assessment Assessment application application � Trustees can live outside of the province � Prudent Investor standard for Trustees � Trustees may manage all financial/property affairs 23 24 4

Capacity Assessment � AGTA allows for trained professionals to assess an adult’s capacity for purposes of court-order applications. The assessment process: Protective – Standardized Measures Measures – Focuses on cognitive and functional abilities Focuses on cognitive and functional abilities – Targets types of decisions the adult will need to make – Identifies the level of assistance required – Makes recommendation on when capacity should be reviewed in situations when it is anticipated the adult will regain their capacity 25 26 Protective Measures: Investigation Protective Measures: Investigation � There is a complaint and investigation process � AGTA identifies restorative actions and if a guardian, trustee, or co-decision-maker is remedies to resolve concerns failing to comply with the order, or is failing in � Where there is extreme risk (life or death) to a their duties and this is likely to cause mental or represented adult with a guardian, the OPG physical harm or financial loss (including the physical harm or financial loss (including the can make a court application for the adult to be loss of property) removed to a place of safety. � Complaints need to be written, signed, and dated 27 28 Emergency Decision Making/Urgent Protective Planning Tools Court Tools decision Measures making Emergency Decisions Non-court doctor + health care Co-decision provider complaint Personal Directives New making process for (Agent) Order personal Specific Decision Personal (co-decision Making Directives and Supported Decision Decisions maker) (specific decision co-decision Choices under Choices under Making Authorization maker) makers (Supporter) (Supporter) Guardianship and guardians. Temporary (Guardian) Guardianship Court Review AGTA (Guardian) Non court complaint Enduring Power of Temporary Financial Trusteeship process for Attorney Trusteeship Decisions (Trustee) trustees. (Attorney) (Trustee) Court Review 29 30 5

Questions? Questions? 31 6