Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m O C T O B E R 2 0 1 7 47 The last time Manitoba looked at its legislation in depth was in 1999, when its law reform commission released the report "Informal Assessment of Com- petence." One of the key things that was iden- tified in Manitoba's 1999 report — and was also identified in this year's Ontario report — is that "very often the person assessing capacity has no formal train- ing," says McCurdy. One of the rec- ommendations was that the Manitoba government should adopt guidelines for those determining competence on a regular basis. "To my knowledge, none of these guidelines have ever been developed," she adds. "They also talked about for- mal training for people who do the assessments and as far as I can see that's never come to fruition either, at least for lawyers." But McCurdy notes there is man- datory training on how to deal with capacity issues, including how to assess capacity, in the health-care field. Nagrani recently completed the Osgoode Certificate in Elder Law, a program at York University in its fourth year that bridges the gap between health care and law as it affects older adults. "It was a mix of the health-care world and lawyers, and I can't tell you how beneficial it was to hear both sides of the coin," she says. In what she considers a "new phe- nomenon," there are now private care companies out there for seniors who need help but don't have family mem- bers or other trusted people on which to rely. While there are many long-standing services for people without substitute decision-makers who need help with their finances, for example, the report notes there haven't been many options or knowledge of options on the per- sonal care side. Silver Sherpa is one of the companies with which Nagrani has aligned. "I've been partnering with them because I understand how to help the senior with all the legal documents that they're going to need to get in place and I can help advise the senior, and then I know on the other side who's implement- ing the strategies or whatever the require- ments are for the senior that it's a reputable private care company that can navigate the system and that's looking out for them. It gives me more confidence that my client is being looked after." McCurdy says there are a few simi- lar organizations in Manitoba, includ- ing organizations that gather links to resources and house them in one spot. One website had a local law firm on the site and said if you have a legal issue call this firm. "My firm hasn't yet made a formal connection like that with any of these organizations, but it's something we've talked about doing to have that reciprocal referral or just bouncing ideas off each other because there are so many issues with financial abuse and other elder abuse that come up," McCurdy says. While there is something to be said for the boots-on-the-ground approach, Aitken highlights that capacity is still a legal question. "Doctors not being lawyers don't sometimes grasp that it's task-specific, so they approach a patient with a view to determining do they have capacity or do they not have capacity. Even the capacity to make a will and the capacity to make a power of attorney are two dif- ferent legal tests so doctors would not necessarily appreciate that." Aitken says when capacity is in ques- tion or a client raises a certain number of red flags, "sometimes we'll get a gerontologist or a family physician to have a visit with the client and give us their perception of capacity." While that is helpful, it's not a legal assessment of capacity. "That's the lawyer's job," she says, but adds "it would be helpful if the doctors saw there was incapacity and if there was nobody to call on, they had some sort of directed avenue." McCurdy also points out that "we have the third lowest number of geri- atric doctors in Canada, so even from the medical perspective — if we're look- ing for doctors to assist us in help- ing to assess capacity, we have another problem there because they don't have enough doctors in that specialty. It's going to be more of a problem as the baby boomers continue to age — there's just so many of them." Nagrani says lawyers should be mak- ing changes to their processes that make sense, whether they're in the law or not. Looking at the Ontario report's recom- mendations, "the ideas are so practical they don't need to be law to make a dif- ference," she says. One example she gives is the power of attorney documents. The law says if you're a substitute decision-maker for somebody under a power of attorney, you should keep accurate records — but that's too vague, Nagrani argues. "In my view, you should be reporting to whom? Not only when asked or when there's a lawsuit and you're served with papers. Maybe the document should say twice a year you're to prepare a statement of my assets for my accountant or to your siblings or to my friend." Aitkin says that recommendation stuck out to her as well as a "really easy fix and it doesn't require a legislative amendment, which in some provinces is harder than others." OUR LEGISLATION, LIKE ONTARIO'S, IS VERY BLACK OR WHITE — IT EITHER PURPORTS TO COVER SOMEBODY WHO HAS CAPACITY OR DOESN'T HAVE CAPACITY — SO WHAT WE'RE LACKING IS THAT MIDDLE GROUND WHERE SOMEONE MIGHT HAVE IMPAIRED CAPACITY. ROBIN AITKEN, COX & PALMER

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