A GUIDE TO THE CERTIFICATE OF INCAPABILITY PROCESS

UNDER THE ADULT GUARDIANSHIP ACT

Presented by:

LORI SWANSON

Objectives for today:

1. Review legislative changes2. Overall Process for Issuing

Certificates of Incapability3. Physician Involvement4. Billing information & working with

the Public Guardian & Trustee

2

Legislative History

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

3

BC’s Adult Guardianship Laws

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

4

Ombudsperson’s Report 2013

FEB 2013; Ombudsperson’s Report No Longer Your Decision

Recommendations to change the certificate of incapability process directed to Ministries of Health, Justice and the PGT, emphasizing:

PGT protective measures Notification Rights advice Assessment processes Fostering independence/involvement of the

adult in decision making

Adult Guardianship Act

Part 2.1 – STATUTORY PROPERTY GUARDIANS

Part 3 – SUPPORT & ASSISTANCE FOR ABUSED AND NEGLECTED ADULTS

6

Capability is Variable

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)

Guiding Principles

Presumption of Capability

Right to Self Determinati

on

Court as a Last Resort

Just Enough Support

9

Autonomy

Protection

Risk

Incapability

No one else

Least intrusive

Self determinati

on

Client’s Home 10

What is a SPG/Committee of Estate?

PGT makes

financial and legal decisions

Committee of

Estate

Statutory Property Guardian

What Decisions Can be Made?

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

PGT = Public Guardian & Trustee

RC = Regional Consultant (PGT staff)

SPG = Statutory Property Guardian

HAD = Health Authority Designate

QHCP = Qualified Health Care Provider

AGA = Adult Guardianship Act

TERMS

PGT would send a request to the Mental Health Directors in IH (under Patients Property Act)

Directors would coordinate the entire process, and make a determination

No uniform practices

Getting much better!

Now, PGT coordinates the work/paper flowIn the Olden Days

Now, PGT coordinates the work/paper flow

PGT conducts an investigation, including requesting a medical opinion

PGT requests an assessment for incapability via Office for Vulnerable & Incapable Adults; QHCP and HAD identified

PGT sends summary of investigation, Medical and “green light” letter to Qualified Health Care Provider

Getting much better!

Modern Times

The Certificate of Incapability Process

Determine the Need

Assessment

Health Authorit

y Designa

te Decision

Second Assessm

ent, Reassess

ment, and Court Review

Certificate of Incapability 17

The First Step

Determine the Need

Investigate

Health Authorit

y

PGT

Referrals

:

PGT or Health

Authority

Financial Institution

s

Service providers

Care facility

Health Authority

Landlord

Family and friends

PGT and Health Authority staff who receive a report of abuse or neglect are:

required to protect the identity of the reporting party, and

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

Public Guardian and Trustee Investigation

Adult May be Incapable

Risk to Assets

No Other Person

The PGT (under the PGT Act) and/or health authority (under the Adult Guardianship Act, Part 3) may: Interview the adult, their spouse, family, friends, care

facility staff, health authority staff Obtain reports about an adult’s health, personal, legal or

financial affairs Gather information from the adult’s bank, doctor,

landlord, lawyer

The PGT has broader authority to obtain financial records including: Asking a substitute decision maker (POA, RA, Trustee) to

provide a financial accounting 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 RA7

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

Emergency Situations

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

When does the certificate of incapability process begin?

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

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

Assessments should only be conducted as a last resort and are unnecessary if there are alternate ways to meet the adult’s needs.

Incapability assessments are undertaken only if the assessment will serve the interests of the adult.

An adult has the right to be informed of the intention to conduct an incapability assessment and to be informed of the assessment outcome.

Assessments begin with the presumption that the adult is capable of making decisions.

Incapability assessments are conducted fairly and with respect for the adult.

Principles to Guide the Assessment

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.

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.

Incapability assessments are concerned solely with the adult’s ability to make decisions about his or her financial affairs.

Assessors respect the adult’s rights to privacy, dignity and well being.

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 Assessmen

t

Functional Component

Medical Componen

t

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: Be on of five named disciplines Be a registered social worker, nurse, psychiatric nurse,

occupational therapist or psychologist, and Meet the standards, limits and conditions established by

their college to act as qualified health care provider Have completed the province-wide mandatory training

Who Can Conduct the Assessment?

The assessment process involves:

Medical examination(s) Interviews with adult where qualified health care

provider asks questions about functioning around finances

Collection of collateral and observational information

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:

serious physical or mental harm, orsignificant 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

Let’s take a tour of forms

THE MEDICAL:http://www2.gov.bc.ca/gov/DownloadAsset?assetId=616BAF9033374BBF98C4F1DBBA15F97E

Old Medical Form

Functional Assessment

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 A945333 (negotiable; up to $326.40)

Arrange with the PGT Regional Consultant who requests your assessment, right at the get-go

Typically, assessments can be completed in one visit

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

Contracted physicians, working as hospitalists are unable to bill

The assessment is considered part of the job/role of the contracted physician

Most common practice is for physicians to do the medical portion only; leave the Functional to the regulated disciplines (the QHCPs)

Check the service agreement; typically, the agreements cover “assessment”

The medical portion of the assessment fits This is for psychiatrists/geriatric

practitioners who may complete the assessments for adults in facility care

This is consistent with other HAs Check it out to be sure! If asked directly by PGT & adult not in HA

facility, negotiate fee with the PGT/invoice the PGT privately

Sessional and one-offs

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

Collateral information is used to corroborate information provided by the adult

Qualified health care providers only obtain information that is relevant and necessary

Best practice is to obtain and record collateral information in advance of the assessment interview as well as afterward

Obtaining Collateral Information

Overall – FOIPPA

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.

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: understand the nature of their financial affairs understand the decisions that must be made or the actions

that must be taken to manage their financial affairs understand the risks and benefits of making or failing to

make particular decisions understand that the information referred to in this

subsection applies to the adult 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

Conducting Assessment Without The Adult

Cannot participate

Cannot be accessed

Refuses to participate

Assessment may be based on observational or collateral information if 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:

The PGTA HADA health authorityA person who makes a written request and

the report will be used for a court application

QHCPs - Disclosing Information

Conducted by a qualified health care provider

Consists 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:Completion of Medical Component FormCollateral information has been gathered and

analysedAdult has been properly notifiedDetermination of adult’s incapabilityCompletion of Functional Component FormCompletion 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

IHA Client Data - since JAN 201550

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,

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?

When the HAD receives a report of an adult’s incapability

Step 1. Review HAD Information Package and determine if additional information is required

Step 3. Provide notice of intent to issue certificate of incapability and opportunity to respond

Step 4. Decide whether to issue certificate of incapability

HAD reviews the package thoroughly

The HAD determines if they require additional information to make a decision

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

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:

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

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.

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

Exception to Notification Requirement

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.

Step 4: HAD Decides Whether to Issue

The HAD must consider any response from adult, spouse or family before making a final decision. May need to:Clarify or obtain additional informationRevisit part of the process

Reasons to not issue may include:Procedural errorFamily member/friend now able to assistNew evidence adult has treatable conditionAdult’s situation changed, no longer need

to make decisions

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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 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

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 and Reassessment

Assessment

Within 40 days of notice that the PGT is statutory

property guardian

Any time after the second assessment

PGT and health authority consult

Adult or someone acting on their behalf can request a second assessment

Adult must be reassessed if any of four instances arise

Second Assessment or Reassessment – Best Practices

Generally, the health authority that will assist in facilitating the assessment is the health authority in the area where the adult is living.

PGT and health authority staff will consult with one another to determine the best manner to proceed in facilitating the assessment.

A second assessment is similar to obtaining a second opinion.

The QHCP(s) conducting the second assessment or reassessment should review the prior assessment information.

Ending Statutory Property Guardianship

PGT satisfied adult no longer

needs SPG

Court rejects determination of incapability and

ends SPG

Following second or reassessment adult is capable

Court appoints private

committee of estate

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