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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
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 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