A GUIDE TO THE CERTIFICATE OF INCAPABILITY PROCESS

A GUIDE TO THE CERTIFICATE OF INCAPABILITY PROCESS UNDER THE ADULT GUARDIANSHIP ACT Presented by: LORI SWANSON

Objectives for today: 1. Review legislative changes 2. Overall Process for Issuing Certificates of Incapability 3. Physician Involvement 4. Billing information & working with the Public Guardian & Trustee 2

� 1962: Patients Property Act � 1993: Adult Guardianship Legislation passed � 2000: Partial proclamation � 2007: AGA amendments not brought into force � 2011: Partial proclamation � 2014: AGA 2. 1 Legislative History 3

Adult Guardianship Act Public Guardian and Trustee Act Power of Attorney Act Representation Agreement Act Health Care (Consent) and Care Facility (Admission) Act Patients Property Act BC’s Adult Guardianship Laws 4

Ø FEB 2013; Ombudsperson’s Report No Longer Your Decision Ø Recommendations to change the certificate of incapability process directed to Ministries of Health, Justice and the PGT, emphasizing: Ø Ø Ø PGT protective measures Notification Rights advice Assessment processes Fostering independence/involvement of the adult in decision making Ombudsperson’s Report 2013

Adult Guardianship Act Part 2. 1 – STATUTORY PROPERTY GUARDIANS Part 3 – SUPPORT & ASSISTANCE FOR ABUSED AND NEGLECTED ADULTS

There are different types and different tests of capability, for example: – To vote (substitution not possible in BC) – To drive (MD to assess) – To marry (very low test) – To make a will (testamentary) – To grant a Power of Attorney (test in POAA) – To be able to contract, Rep 7 vs. Rep 9 agreements – To manage financial and legal affairs (AGA, PPA) – To refuse service under a Support and Assistance plan (AGA) – To make health care decisions (HCC…A) – To make health and personal care decisions (PPA, RAA) Capability is Variable

Court as a Last Resort Right to Self Determination Just Enough Support Presumption of Capability Guiding Principles

Autonomy Protection No one else Self determination Incapability Least intrusive Risk 9

Client’s Home 10

Statutory Property Guardian Committee of Estate PGT makes financial and legal decisions What is a SPG/Committee of Estate?

Committee of Estate/ Statutory Property Guardian CAN make decisions about: Committee of Estate/ Statutory Property Guardian CANNOT make decisions about: Securing assets Health care Confirming eligibility for benefits Personal decisions Receiving income Placement and living arrangements Paying bill Marriage or divorce Contracting for services Adoption Maintaining, purchasing, and selling real estate Voting Managing investments Executing a will Preparing tax returns Criminal proceedings Appropriately providing for legal dependents Immigration matters What Decisions Can be Made?

Ø PGT = Public Guardian & Trustee Ø RC = Regional Consultant (PGT staff) Ø SPG = Statutory Property Guardian Ø HAD = Health Authority Designate Ø QHCP = Qualified Health Care Provider Ø AGA = Adult Guardianship Act TERMS

Ø PGT would send a request to the Mental Health Directors in IH (under Patients Property Act) Ø Directors would coordinate the entire process, and make a determination Ø No uniform practices Ø Getting Ø Now, much better! PGT coordinates the work/paper flow In the Olden Days

Ø Now, PGT coordinates the work/paper flow Ø PGT conducts an investigation, including requesting a medical opinion Ø PGT requests an assessment for incapability via Office for Vulnerable & Incapable Adults; QHCP and HAD identified Ø PGT sends summary of investigation, Medical and “green light” letter to Qualified Health Care Provider Ø Getting much better! Modern Times

Determine the Need Assessment Health Authority Designate Decision Second Assessment, Reassessment, and Court Review The Certificate of Incapability Process

Certificate of Incapability 17

PGT Health Authority Investigate Determine the Need The First Step

: Financial Institutions Family and friends Service providers PGT or Health Authority Care facility Landlord Health Authority Referrals

PGT and Health Authority staff who receive a report of abuse or neglect are: Ø required to protect the identity of the reporting party, and Ø prohibited from disclosing the identity of the person who made the report s. 46(1) Adult Guardianship Act s. 17(3) Public Guardian and Trustee Act Protecting the Identity of a Reporting Party

No Other Person Risk to Assets Adult May be Incapable Public Guardian and Trustee Investigation

The PGT (under the PGT Act) and/or health authority (under the Adult Guardianship Act, Part 3) may: Ø Interview the adult, their spouse, family, friends, care facility staff, health authority staff Ø Obtain reports about an adult’s health, personal, legal or financial affairs Ø Gather information from the adult’s bank, doctor, landlord, lawyer The PGT has broader authority to obtain financial records including: Ø Asking a substitute decision maker (POA, RA, Trustee) to provide a financial accounting Ø Obtaining reports about the adult’s financial situation from the adult’s bank, credit union or investment advisor What happens during an investigation?

Adult is capable Adult is able to make EPOA or RA 7 Informal supports are sufficient Adult is referred to appropriate services SDM now complying Someone else able to assist Certificate of Incapability is warranted Investigation Outcomes

Designated agency may remove adult from premises and provide emergency care PGT may protect adult’s assets by preventing bank withdrawals and halting sale of property PGT and health authority may expedite the process through collaboration Emergency Situations

§ Once the need has been determined and there is no one else to assist, the PGT and the health authority will consult about how to proceed § Consultations assist PGT and health authority on next steps, eg: sharing investigation and contact information, and determining who will coordinate components of assessment When does the certificate of incapability process begin?

Conducting Assessments 26

The purpose of an incapability assessment under Part 2. 1 of the Adult Guardianship Act is to determine whether an adult is incapable of managing his or her financial affairs. Purpose of the Assessment

v Assessments should only be conducted as a last resort and are unnecessary if there alternate ways to meet the adult’s needs. v Incapability assessments are undertaken only if the assessment will serve the interests of the adult. v An adult has the right to be informed of the intention to conduct an incapability assessment and to be informed of the assessment outcome. v Assessments begin with the presumption that the adult is capable of making decisions. v Incapability assessments are conducted fairly and with respect for the adult. Principles to Guide the Assessment

v A capable adult has a right to make decisions about his or her financial affairs and must not be assessed as incapable solely because others disagree with the adult’s decisions. v An incapability assessment is a process to be completed in consultation with the adult, those who are supportive of the adult and an inter-professional team as appropriate. v Incapability assessments are concerned solely with the adult’s ability to make decisions about his or her financial affairs. v Assessors respect the adult’s rights to privacy, dignity and well being. v A determination of incapability does not automatically mean a Certificate of Incapability is issued. A Certificate of Incapability is only issued as a last resort when the adult needs the Public Guardian and Trustee as Committee of Estate to protect and manage his or her financial and legal affairs. Principles to Guide the Assessment. . Cont’d

One Assessment Medical Component Functional Component Assessment of Financial Incapability

Only medical practitioners (physicians) can conduct the medical component of the assessment. Physicians are the only ones who can conduct both the medical and functional components of the assessment. A Qualified Health Care Provider (QHCP) can conduct the functional component of the assessment. To be considered qualified for this purpose a health care provider must: v Be on of five named disciplines v Be a registered social worker, nurse, psychiatric nurse, occupational therapist or psychologist, and v Meet the standards, limits and conditions established by their college to act as qualified health care provider v Have completed the province-wide mandatory training Who Can Conduct the Assessment?

The assessment process involves: Ø Medical examination(s) Ø Interviews with adult where qualified health care provider asks questions about functioning around finances Ø Collection of collateral and observational information Ø Analysis and determination about the adult’s ability to make decisions about his or her finances Assessment Process

Reason for Assessment May Result in SPG Adult May Refuse Adult may have Support Person Adult May Have a Copy of Assessment Adult May Ask Questions Information to be Given Before Assessment

Notification is not required if the qualified health care provider believes that notifying the adult would result in: vserious physical or mental harm, or vsignificant damage or loss to the adult’s property Exception to Requirement to Notify

Must be conducted by a physician § Must be conducted within 6 months before the assessment report is completed § Consists of one or more examinations § Must include all resulting diagnoses and prognoses relevant to the adult’s incapability to manage finances § Medical Component of the Assessment

THE MEDICAL: http: //www 2. gov. bc. ca/gov/Download. Asset? asset. Id=616 BAF 9033374 BBF 98 C 4 F 1 DBBA 15 F 97 E Old Medical Form Functional Assessment Let’s take a tour of forms

Ø For MDs engaged by the PGT to conduct a medical assessment for incapability, MDs can bill the PGT using Doctors of BC Uninsured Services Code A 945333 (negotiable; up to $326. 40) Ø Arrange with the PGT Regional Consultant who requests your assessment, right at the get-go Ø Typically, assessments can be completed in one visit Ø If a Certificate of Incapability is issued & the PGT becomes Statutory Guardian, the fee is recovered from the adult’s estate Physicians in Private Practice

Ø Contracted physicians, working as hospitalists are unable to bill Ø The assessment is considered part of the job/role of the contracted physician Ø Most common practice is for physicians to do the medical portion only; leave the Functional to the regulated disciplines (the QHCPs)

Ø Check the service agreement; typically, the agreements cover “assessment” Ø The medical portion of the assessment fits Ø This is for psychiatrists/geriatric practitioners who may complete the assessments for adults in facility care Ø This is consistent with other HAs Ø Check it out to be sure! Ø If asked directly by PGT & adult not in HA facility, negotiate fee with the PGT/invoice the PGT privately Sessional and one-offs

v Collateral information is any information that a qualified health care provider obtains about the adult from third parties Generally, collateral information is collected during the investigation v Collateral information is used to corroborate information provided by the adult v Qualified health care providers only obtain information that is relevant and necessary v Best practice is to obtain and record collateral information in advance of the assessment interview as well as afterward Obtaining Collateral Information

Overall – FOIPPA Ø Right to Information - Under the AGA health authorities, QHCPs, HADs and the PGT have a right to the information necessary to perform their duties, powers and functions. Any person who has custody or control of the information required by QHCPs, HADs, and the PGT must disclose that information when asked. Ø Disclosure of Information - Under the AGA, the PGT and health authorities may disclose information obtained under the Act for the purposes of exercising powers or performing duties or functions specified under the AGA. This includes a QHCP. Authority to Obtain Information

An adult is incapable of managing their financial affairs if, in the opinion of a qualified health care provider, any of the following apply: The adult cannot: ü understand the nature of their financial affairs ü understand the decisions that must be made or the actions that must be taken to manage their financial affairs ü understand the risks and benefits of making or failing to make particular decisions ü understand that the information referred to in this subsection applies to the adult ü demonstrate that he or she is able to implement, or to direct others to implement, the decisions or actions about their financial affairs Test of Incapability

Assessment may be based on observational or collateral information if the adult: Refuses to participate Cannot be accessed Cannot participate Conducting Assessment Without The Adult

A QHCP who performs an assessment of an adult's incapability may disclose information obtained under the AGA for the purposes of providing a Form 1 – AGA Report of Assessment of Incapability to: Ø The PGT Ø A HAD Ø A health authority Ø A person who makes a written request and the report will be used for a court application QHCPs - Disclosing Information

ØConducted by a qualified health care provider ØConsists of one or more evaluations of the adult’s understanding of, and the adult’s ability to manage that adult’s financial affairs Functional Component of the Assessment

Complete Form 1 – the first LEGAL document Attach assessment report details Explain the details and results to the adult Advise adult of in/capability determination Offer the adult a copy of the report Report the adult’s incapability to a HAD Role of QHCP After an Assessment

If the functional component of the assessment is being conducted by an interdisciplinary team, a lead Qualified Health Care Provider must be identified. The lead QHCP is responsible for ensuring: v. Completion of Medical Component Form v. Collateral information has been gathered analysed v. Adult has been properly notified v. Determination of adult’s incapability v. Completion of Functional Component Form v. Completion of Form 1 Recommended that lead QHCP conduct one or more evaluations for Functional Component Role of the Lead QHCP

Health Authority Designate Decision

The Health Authority Designate is responsible for making a decision about whether or not to issue a Certificate of Incapability. This is not a decision that should be made lightly. Once a certificate of incapability is issued the adult loses their ability to make financial decisions which means a loss of independence and autonomy. Role of the Health Authority Designate

Health Service Area Referrals Location of Adult TCS 8 5 RES, 2 COMM, 1 TERT NOK 8 6 RES, 1 COMM, 1 UNK COK 6 4 RES, 2 COMM SOK 6 5 RES, 1 COMM KB 3 1 RES, 2 COMM EK 2 2 RES 33 requests 23 RES, 8 COMM, IHA Client Data - since JAN 2015 50

There are no specific qualifications or criteria for health authority designates. In each health authority, HADs have different titles and roles. To be a HAD a person has to be designated with authority to issue certificates of incapability. HADs can be designated in one of two ways § Directly by a regional health board or the PHSA, or § By an employee authorized by bylaw to designate HADs on behalf of a regional health board § In IH, HADs are CEO appointments Who is a Health Authority Designate?

Step 1. Review HAD Information Package and determine if additional information is required Step 2. Consider and apply criteria before making a decision Step 3. Provide notice of intent to issue certificate of incapability and opportunity to respond Step 4. Decide whether to issue certificate of incapability When the HAD receives a report of an adult’s incapability

Ø HAD reviews the package thoroughly Ø The HAD determines if they require additional information to make a decision Ø If the HAD believes that there is not enough information to make a decision, they should contact the QHCP or the PGT to discuss what additional information is needed Ø HAD furnished a checklist, which they must sign Step 1 – Review the Information Package

The health authority designate may issue a Certificate of Incapability if they are satisfied of all of the following: Ø Ø Ø The adult needs to make decisions about the adult’s financial affairs The adult is incapable of making those decisions The adult needs and will benefit from the assistance and protection of a statutory property guardian The needs of the adult would not be sufficiently met by alternative means of assistance Either the adult has not granted power over all of the adult’s financial affairs to an attorney, or the adult has an attorney who is not complying with his or her duties Step 2 – Consider and Apply Criteria

v The HAD is required to notify the adult, adult’s spouse or family member (if contact information is known) of the intention to issue a certificate of incapability. v The purpose of providing notice is to explain the decision the HAD intends to make, the reasons for it and to provide the adult, and the adult’s spouse or family member(s) with an opportunity to respond if they have concerns before the decision is made. Step 3 – Notice of Intention to Issue and Opportunity to Respond

If HAD has reason to believe that notification may result in serious physical or mental harm to the adult, or significant damage or loss to the adult’s property. Exception to Notification Requirement

The HAD must consider any response from adult, spouse or family before making a final decision. May need to: �Clarify or obtain additional information �Revisit part of the process Reasons to not issue may include: �Procedural error �Family member/friend now able to assist �New evidence adult has treatable condition �Adult’s situation changed, no longer need to make decisions Step 4: HAD Decides Whether to Issue 57

The certificate of incapability – Form 2 is effective on the date that it is signed by the health authority designate. The HAD must immediately fax, then forward the certificate to the PGT; PGT becomes authority on receipt of fax. Form 2: Certificate of Incapability

On becoming the statutory property guardian, the PGT must advise Ø The adult, spouse or family member(s) that the PGT is the adult’s committee of estate and may make decisions about the adult’s financial affairs Ø The adult of the right to second assessment, reassessment and court review. PGT as Statutory Property Guardian/ Committee of Estate

A committee must, to the extent reasonable, foster the independence of the patient and encourage the patient’s involvement in any decision that affects the patient. This applies to all committees: the PGT and private committees appointed through the court. Patients Property Act S. 18(2)

Second Assessment, Reassessment, Court Review and Ending SPG

Second Assessment PGT and health authority consult Assessment Within 40 days of notice that the PGT is statutory property guardian Any time after the second assessment Reassessment Adult or someone acting on their behalf can request a second assessment Adult must be reassessed if any of four instances arise Second Assessment and Reassessment

Ø Generally, the health authority that will assist in facilitating the assessment is the health authority in the area where the adult is living. Ø PGT and health authority staff will consult with one another to determine the best manner to proceed in facilitating the assessment. Ø A second assessment is similar to obtaining a second opinion. Ø The QHCP(s) conducting the second assessment or reassessment should review the prior assessment information. Second Assessment or Reassessment – Best Practices

PGT satisfied adult no longer needs SPG Following second or reassessment adult is capable Court rejects determination of incapability and ends SPG Court appoints private committee of estate Ending Statutory Property Guardianship

Prepare Cancellation of Certificate of Incapability Generally provide Cancellation to adult and family Take steps to give adult control over their finances Send Cancellation to third parties advising PGT no longer SPG; eg: banks PGT ends authority on the date PGT signs the Cancellation of Certificate of Incapability What Does PGT do when SPG Ends?

* Legislated notification and rights to review * Standardized assessments by QHCPs * Certificate process now de-linked from the Mental Health Act * All Committees now obliged to follow same set of principles – duty to foster independence and include adult in decisions that affect them Benefits of These Changes

QUESTIONS? Merci