Hello out there and welcome back. Today we are coming to you with a
replay of a webinar that we held for our clients where we were joined
by Nathan Spalling and Dr. Richard Shulman from the Capacity Clinic,
an independent firm with a mission of helping Canadians make
incapacity situations more predictable. They provide assessments of
decision-making capacity. They do clinical consultations, and they
create educational content for Canadians. We have a great deal of
respect for the work that the capacity clinic does, filling what we
think is a major gap in financial literacy. We hope you enjoy it. So,
the topic that we are going to discuss today is incapacity. It is not
necessarily one of the most fun uh topics that we deal with as
professionals, but it might be one of the most overlooked topics. I
think if you're trying to get a get a handle on your finances and
planning out your life, there are libraries of books that you can read
on retirement planning, estate planning, tax planning, uh, and really
any kind of financial planning. But it turns out that if you want to
learn about how to plan for the case uh that you become incapacitated
and you can't make your own decisions, it is not so easy to read up on
things. And that is really where the capacity clinic comes in. Uh the
capacity clinic was founded by Nathan Spalling who's on the line with
us here today and its mission is really to give education and support
to substitute decision makers to people who have substitute decision
makers and to professionals who deal with clients uh that that have
substitute decision makers and really to give them uh first of all
education and second of all some tools and resources so that we can
set up a situation where uh where we get some control back in a time
in your life where you might be the most vulnerable. So Nathan is a is
a lawyer by trade and uh he's the founder of the two organizations
that you see on your screen here, Capacity Clinic and the POA
Registry. Uh you can check them out on Google if you want to learn
more and I'm sure we'll hear a little bit more about them as we go
through the presentation. And our guest speaker uh today is Dr.
Richard Schulman who is the medical director of the capacity clinic.
He is a geriatric psychiatrist by profession uh and he gets involved
in capacity assessments and in uh in building a lot of the educational
material uh that the capacity clinic offers. So Dr. Schulman, thank
you so much for joining us. Um I think we’ll kick it off and just talk
a little bit about what is a substitute decision maker? uh what is it?
Why do we need one? And how can they help? All right, Dr. Schulman, if
you wanted to pass the mic to me, I'll maybe comment on this first.
You are on mute, though, just in case you didn't know you were on
mute. Uh but thank you so much, Andrew, for having us. This is uh this
is amazing to be here and uh a really cool opportunity and I think
this was something that started in our early conversations that you
know one of the gaps that we often see is just how siloed sometimes
these processes are where you know I see from the legal side how
substitute decision makers often work for me and you know Dr. Schulman
may see it from more of the health side and Andrew you see it from the
uh from the financial side and you know this is really cool to see
some of these forums that bring these conversations together because
yeah you're absolutely right when you kick it off to say there has
been a lot of disconnection in substitute decision-m and primarily
it's because there's so much emphasis on the on the estates and if you
plan your estate in the same way as you would plan your uh your
incapacity there. There's just different considerations that you have
to make and maybe Dr. Schulman will well I'll pass it to you as well
is um we really see you know I've had a lot of experience signing
these documents in my legal capacity when I was a lawyer and as Andrew
said uh I am a lawyer but I'm the best kind of lawyer because I'm the
one that doesn't practice anymore.
So, uh, that means I get to tell my family members at these family
reunions, they have to go get independent legal advice now instead of,
you know, trying to get the milk through the fence. But, uh, we have
also seen, especially through the time of the capacity clinic now
doing the evaluation side because I'm also a registered social service
worker and doing the evaluations, this is the time of use, right? So,
so how do you take that incapacity plan and really implement it? And
that is where we've seen over the years so many uh of these
disconnections uh which is hard to balance not only for the person
making the decisions. They're substitute decision makers but what
we're also calling you know the decision-m network as well. So, I
think what the slide here is really talking about firstly is we're not
talking about estates. Okay. So, estates uh and estate planning that
happens after you die. So, this is information that happens to you
after you die. So what we're seeing here is uh the ability to who can
make your decisions for you which are divided into two areas. Okay.
So, there's decisions about your health and decisions about basically
non-health but that's property and banking and that that sort of
thing. So you see the operation here where the power of attorney a
general power of attorney the unique part about that is it's not
typically effective after you're incapable unless the document
specifically says it. the enduring power of attorney that is typically
effective through uh both now and in capacity and then the springing
power of attorney is really intended to fill that time when you are
incapable of making those decisions uh for yourself. So, so how we're
trying to and what we've seen a lot of when it comes to the capacity
assessment and where the plan isn't, you know, meeting the uh the
proper intervention is a lot because I think the biggest myth is
people believe they'll be able to tell when they can't make their own
decisions. And Dr. Schulman, if you would not mind maybe speaking to
uh just after I finish this. Uh obviously that is not the case. You
know, people aren't aware of these things. So then how can you start
to proactively understand this as the decision-m network as well,
right? And um maybe that's a good time to segue into some limitations
of yourself and substitute decision making, right? So what I would
suggest is a very common problem that most people will come across and
we see it all the time in the hospital. We see in the clinic it is
this issue of is someone able to go home from the hospital or are they
able to remain living alone at home. So this is I can tell you I
consult on medical and surgical floors at a major hospital and we have
a lot of uh highly trained and very smart doctors but it comes to this
question it's a mystery to people know what how do you determine if a
person can make a decision that they can go home from the hospital
because it takes into account two major issues. number one to decide
on your shelter. It's a personal care decision and if you are not able
to make that decision a such decision maker particularly of a power
attorney for personal care can make that decision. But when you go to
a shelter you have to manage it. That's management of property. And so
that brings into the idea that here we have a non-health situation.
Management of financial affairs and property which is not health but
yet it's implicated in the decision. Can someone safely leave the
hospital and go home? And that takes in now brings in the issue of
does this person have power attorney for property? A subject decision
maker for property which a lot of health care people don't know much
about. So, this is where these two concepts come together in the
hospital in the outpatient clinic anyone who does geriatrics this idea
about where do you live? It's not simply choosing shelter. It's also
managing the property and the two come together and that's where the
system fails because people don't plan for uh the need for substitute
decision making and in a health care environment, you're at risk that
we can facilitate putting you under the public guardian. So these are
big issues. Thanks. Yeah. From the from the uh wealth advisor side, we
don't uh we don't necessarily hear directly about issues coming in on
the on the medical side and with a person's health. um we're concerned
about their about their property and their money and really who can
give us uh direction about what to do with their with their financial
accounts and really how we how we advise them uh what to do. But it is
um it is I guess obvious from what you've said that the ideas of uh
making decisions for your healthcare and your property, they're not
necessarily one and the same. And even within your health um there are
there are different topics that you might have to broach and decide
whether a person is capable of making a decision on one topic uh or
with respect to one task. Um and it uh you know while uh while
decision-m capacity might be task specific, it's always got a lot of
implications on what the person is able to do. And uh and we see a lot
of uh a lot of hesitancy for uh around people um trying to trying to
identify or even um lack of understanding of how to identify
incapacity especially from the professional side and I'll say coming
through university and training for my CFA designation and as a wealth
adviser uh we talk a lot about how to manage money. Um, but this this
idea of does a person have capacity and really how do you uh how do
you detect it and how do you really determine uh whether somebody's
incapable that's not really a topic that we've got chapter after
chapter on in our uh in our textbook. And you know the interesting
part Andrew if you go to the next uh next slide u there's a lot of
times people believe this is situations that only are coming from
Hollywood right these are like the extraordinary you know something
that has to be fabricated where it's only in this you know 1% of the
1% of people um but it's honestly a lot of common scenarios common
situations and the way that now the financial world starting to bleed
into, you know, the care the care needs of people, right? And the way
that you're able to fund those kind of into your later years is using
an asset like a house and, you know, a financial advisor and an
arrangement that is able to help achieve your living needs to be to be
well. So, uh, here is a scenario that we've, you know, often see is is
there are siblings living across Canada as well. I don't know how much
we wanted to get into this, Andrew, but maybe if you don't mind, I'll
summarize just very common things that we see. Um, a lot of times
they're joint substitute decision makers. They do not have to be. uh
but uh the parent is living by themselves in a house or you know in
the same neighborhood as another family member. If you scroll to the
next one, um generally uh generally speaking it a lot of the potential
for conflict um it can it's so fact dependent. Uh but the importance
of having somebody monitoring these types of uh potential
vulnerabilities is so crucial. So um Dr. Dr. Schulman, if we'll go
through maybe the rest of the arrest of the scenario, but when you're
going through this, I think what you want to really consider is I'm
not sure everybody on the phone or on the line here, if you're acting
as a power of attorney, if you've appointed one yourselves, if if
you've already been through the process, but when you think of the
timing that we're talking about here, right, we're talking about
removing somebody's ability to make their own decisions, right? Um
sometimes that that that that's not the same as supporting decisions,
right?
So, you can have support when you make decisions, but think about
this, how you would want somebody to intervene, uh how you would want
your substitute decision maker to behave, and how would you want your
adviser to behave? And the outcome of this conversation is, you know,
talking to Andrew and the team at National Bank so that you can really
have clear expectations around these very important issues. I think
it's going to help take that plan from, you know, something that you
put in paper and make it useful for when uh when that time isn't so
clear. So, I believe the next uh the next few slides are where uh Dr.
Schulman, I'll kick it over to you if you uh if you don't mind, but
these Yeah, maybe I'll jump in for just a second. I think you hit the
hit the nail on the head. Um you know, the situation here is a is a
simple one, but it's not it's not out of Hollywood. We've got uh we've
got a a parent uh living on their own, and they like to live
independently and probably want to as long as they can. uh and two
children who might see differing sides of the parent uh might not have
all of the information themselves uh and one of them's definitely uh
removed. So, there might come a time in in Rose's life when she she's
unable to make decisions for herself. And you can bet that the kids
are going to jump in and have an opinion about the best way for the
world to proceed. uh you can bet that the kids probably have their
mom's best interests in in in mind. Um but Nathan that you know the
questions you asked are really the ones uh ones that everybody should
be considering is uh in the case that I become incapacitated uh how do
I want the people around me to try uh to determine whether I'm
incapacitated and if I am uh and if I can't make my own decisions what
decisions do I want them to make on my own behalf? So, probably those
with uh with the strongest opinions in in this case, you know, the two
children um aren't really the people that that we should be asking uh
what to do. It's really, it's really Rose. It's really Rose's wishes
uh the mother's wishes that we are that we're always concerned about.
And when it comes to making decisions when you're when you're
incapacitated, uh you will not necessarily know the time that is going
to happen. Um, and so you want everybody to kind of be on the same
page. You know, what should we look for? Uh, and once it occurs, um,
how do we support Rose so that her wishes kind of play out as she
wanted. Uh, and it's a lot about giving the substitute decision
makers, uh, as much information as possible beforehand um, so that
they know how to uh, how to address a situation. And as a financial
adviser, you know, we might get involved in a lot of different cases.
Um, it could mean uh could be that that the mother needs some support
as she is getting older, but that's doesn't necessarily need a
substitute decision maker. Like Nathan said, she might need support in
making decisions but not necessarily need somebody to make them uh for
herself. So, you know, maybe Rose gets uh gets overwhelmed with the
volume of uh of mail that's being sent to her because everybody's
asking her for a donation and you know, spam coming here, there and
wherever. Uh and so Jane wants to be helpful and Jane wants uh Rose's
financial statements to be sent over to Jane instead of Rose just to
take that burden off of her. Um now, painting it as I have, that seems
like an amazing thing. Jane wants to help out her mom. Uh, but as a
financial adviser, I have to start asking myself some questions about
why is Jane asking for this now? Is this really in in Rose's best
interest? And, you know, would doing this remove uh information from
Rose's life that she really should have as our client. Um, and of
course, if one of the children steps in and says, you know, Rose isn't
capable of making her own decisions anymore, or uh you know, Rose
wants to uh build me a house. Um, of course those are those are
questions that that can come up and maybe lead to a bit longer of a of
a discussion. Um, and Nathan, thank you for letting me jump in and I
agree the next um, we'll hear from uh, Dr. Schulman really about, you
know, the nature of incapacity.
I just had to agree with you and I think if I can transition it,
it's the next slide hits the nail straight on the head, right? And
this is the this is the biggest pain point we've seen is we started
with this but um if anybody was distracted right now I would say this
is like the key point to pay attention to um and I think the
difficulty and the incapacity plans working out like people want to.
So, don't slam the powers of attorney and your substitute
decision-making documents into the vault like you would the will. You
do not want somebody to treat you differently after you die. No
problem. I don't either based on or do not want to treat people
differently during my life based on how things I leave things after I
die. But if you cannot detect your own incapacity, just like Andrew
said, then how are you setting the people up around you that are
supposed to help in this situation? How are you going to set them up
to succeed? And just like Andrew said, it has to start with, you know,
the yourselves and then it moves out to okay, well, who's all else in
this network? so that these proactive boundaries can be set and this
is the key opportunity I think that doesn't exist is the three areas
the four or five areas I don't know how many I guess there are but I
always think kind of law financial health in uh my narrow experience
but uh that's kind of the key in this but uh Dr. Shulman, I think uh
it's always nicer to hear some examples of people, you know, uh who
aren't understanding that limitation and the difficulty that you've
seen in the practice. How does somebody know that I should start to
step in? What am I Yeah. Okay. So I guess first we should um well we
should go back to that previous slide for a second because uh I think
it I want to emphasize this question or try to answer this question
why can a person not detect their own incapacity like it says there we
cannot but why not so that that's really a fundamental issue why can a
person not because we see that in major illnesses, major mental or
neurological illnesses that impact capacity that a person often cannot
recognize the manifestations of the condition. And this is why it says
in the health law, the Supreme Court of Canada has explained this
because we're going to talk whenever we talk about capacity,
regardless of the legal test, there is two fundamental abilities built
into the criteria of any legal test. This is the ability to understand
the relevant information and the ability to appreciate the potential
consequences of decision. So, let's just look at those two concepts to
begin with. How do we determine someone's ability to understand
relevant information? So, we know from case law here in Ontario, it's
being described similar to the way I think about it. Imagine your
brain it's a box. You got to put information into the box. So that's
comprehension. Is a person able to receive and comprehend information?
Then you have to store the information in the box which in health law
it's been described as processing. I call it storage. They call it
processing. It's the same idea. And then you have to retrieve the
information to use it which they which is called in case law it's
called articulating the information. It's the same idea. So you're
receiving, storing and retrieving information. And there are many
conditions that impact the ability to do that. Typically, these are
either severe psychotic illnesses or cognitive disorders,
neurodegenerative conditions that cause dementia. Okay? So, but that
is that could be visible to you because you could see that you have
had a discussion with someone and they cannot retain the information
shortly thereafter. They do not remember what you said. So, they
cannot retain and articulate it. But the second criteria is much more
challenging. The ability to appreciate the consequences of a decision.
It is an abstract concept. How do we examine that? So, we know this
also from case law that the court in the Supreme Court of Canada said
that this there is a concept that you have to be able to recognize the
manifestations of your condition and apply the relevant information to
yourself. So I need to know something about my own situation, my
health, my social situation, my circumstances, what are my
limitations, what are my values and apply that relevant information
whatever about the decision I'm making to myself and then I can
evaluate this path might give me that consequence, this choice might
give me that consequence and that's how I'll choose. Dr. Schman, could
you give me could you give them an example of when somebody would
recognize their own limitations and when somebody could not? I think
that's helpful to hear like a scenario. So, for example, in illnesses
in an illness like depression that may not be so severe, not to the
point where they're hospitalized, a person will often say, you know, I
am terribly depressed. I can't work. I can't uh meet my family's
needs. I cannot concentrate.
I am having trouble sleeping, trouble eating. But they are
recognizing the manifestations of their condition. And so the golden
pearl I talk about is who is doing the complaining. In depression,
it's a subjective complaint. There's something wrong within me. Then
we have the opposite that we see in neurodegenerative illnesses like
Alzheimer's disease or in severe schizophrenia that there's nothing
wrong with me. It's some it's outside of me. You know, I have no
problem. My daughter is the crazy one. Uh you know, do not listen to
her. I can manage my financial affairs. There is nothing wrong with
me. So I always ask who's doing the complaining? In severe mental
illnesses, particularly dementing illnesses, the person with the
illness rarely complains. It's the family who's complaining about
them, their decline in functional ability. They they're not the same
as they were before. So that's a little pearl you could ask yourself.
Well, who is doing the complaining? If the family member is
complaining about the person and they say they're perfectly fine, that
should be a red flag to you that this might be a condition where they
can't recognize the manifestations of their condition and I need to
get a proper assessment because I might take instructions from someone
who's not making a capable decision. I I will at the sake of the
timing probably say I'd go on, but I have a few things I'd like to
follow up on with that if we uh if we could. And Andrew, I'll
summarize this really quickly. This is typically how we see a lot of
people using the uh um substitute decision-m at the moment is because
it's again unlike a will, you need this before you pass, right? So,
you know, at what point is incapacity or substitute decision-m often
kicking in if it's not effective immediately? We're talking in cases
of incapacity. So, we call this the three landmine approach or doesn't
have to be three, it could be one, it could be five, but just
essentially a lot of people are not wanting to step in and make
decisions on another person's behalf because they simply they don't
have enough information to believe it warrants it. So, then they often
for fear of confrontation, for you know uh perhaps other reasons they
wait until these really out of character not just that as Andrew had a
slip of memory in here. It's more of a completely bought a car and do
not have a driver's license. Um that's the point that people will
intervene with the network to service provider. You know, we have seen
this a lot more, but the challenge a lot of times I saw as a lawyer is
I get one card, I get a small I had a small snippet of information and
I didn't know if that amounted to a bigger concern or if that was that
slip of the memory type of concern. So the last one is just a lot of
people are using capacity assessments. The difficulty is capacity
assessments are very intrusive in terms of you know we're unbiased. we
are really asking a lot of pointed questions which um does have its
point in the process, but you know, often times a concern is you are
stepping on these landmines in advance. And a lot of people look at
the money is one thing that you potentially are going to have the
consequence of, but a lot of what the capacity clinic's been retained
for. We do these complex capacity assessments where estate
litigation's happening and so many times just as Andrew said they're
the family cares about their parent so much. They both have a
conversation with the same parent at two different points in time and
one of the two of them was unfortunately talking to an incapable
person and or potentially incapable person and didn't know it. So, the
uh both try to support their parent in the way that they've had the
earnest conversation but it really leads to a lot of family conflict
which I think is the uh biggest challenge that uh that we're seeing.
So uh anyway I would just add to that uh because I was struck by
Andrew's also Andrew's coma you know the family they're trying to help
we you know and that's one of our biggest challenges is that the
literature in elder abuse has shown the most common perpetrator of
elder financial abuse is an adult male child of a senior often living
with the senior. So, this is our challenge that uh we have uh family
members who feel entitled and they will take advantage of the senior.
They may abuse the authority of a power attorney. They may do other
fraudulent things. Uh we see a lot of family conflict and that's the
big challenge about trying to promote autonomy is that maybe with
assisted decision making the person can still make decisions. At what
point do you take over for substitute decision making? It's very
challenging. Even professionals have challenges trying to advise
people. For family members, even more difficult. So, this is the type
this is the um environment that we're working in in these type of
cases. Yeah, you're definitely highlighting a challenge for
professionals. Um because you want to believe that the children always
have the mother's best interests at heart, but at the end of the day,
you know, if Rose is my client, Rose is my client. And I have to
approach the situation with some sort of skepticism uh because I must
protect Rose. Rose is my number one priority. And so then question
becomes uh is a person incapable and how do you determine that? So
here's some uh some approaches that you've talked about to determine
incapacity, but if I'm sitting here uh you know in my uh mid to late
30s uh thinking this might happen to me at some point in time, what
are the best practices? What how should I set up myself uh knowing
that I can't determine my incapacity? What do you see out there as the
best practices for uh for putting substitute decision makers in in a
position to make that determination in a time when I would agree with
it, which is also a time when I'm not capable of agreeing with it. I
think that leads into the next section perfectly, which is uh the tips
that uh Andrew gave us all the credit.
No way. This there is a lot of Andrew, too. So we just appreciate
the opportunity to speak here today but uh we really appreciate uh
again we're we don't know the financial side like uh like Andrew and
the team does. So uh we are grateful for the input. Um Dr. Shulman
I'll comment and you comment but I'll try to keep these quick because
we can try to save some time for questions I think was also the um the
goal. So Andrew jump in as needed too. Tip uh tip number one I think
is essential everyone. Uh so specifically for property um you do not
automatically have a substitute decision maker. So if you have not
appointed one um then as it relates to property you don't have a
choice necessarily because there is going to have to be the court sign
off on these appointed substitute decision makers. So having an
incapacity plan will get you so far ahead to reduce your risk for
becoming a victim of elder abuse or sorry not elder abuse but let's
say of a vulnerable person or a vulnerable situation. Um the timing it
takes to do that is extraordinarily long. I mean you know I I can
speak to one maybe two different provinces. I unfortunately uh can't
speak specifically to uh to Manitoba, but um if it would follow suit,
generally speaking, you're a three to a six-month process and it's
several tens of thousands of dollars. And you know, if you don't have
somebody and people understand that you're incapable, so you cannot
sign these documents anymore, um then that's uh something you want to
uh really consider being proactive about it. So I think that's um
message number one. I have had the displeasure, absolute displeasure
of sitting in the hospital trying to help somebody who wanted their
dad to sign a power of attorney. He just had a stroke and uh the
gentleman was crying because his dad let some new occupant live in the
house with him because he was lonely. Now the landlord refused to work
with the son until he was appointed as the power of attorney and
that's where my uh assessment was and unfortunately when I waited I
tried to give him you know additional time and you know capacity is
that time task in situation specific right so you can have capacity
today you may not have it tomorrow But you can regain it in the
future. So I tried to give some time to pass to see if this was
possible. But the next time I went, and he couldn't even remember his
son's name. And I have integrity behind every signature that I put on
a piece of paper. And I uh I couldn't sign that document that day. So,
he had to go through the court. And that was a that was a terrible uh
situation. Um I tried to get the answer in advance. if you have an
automatic care uh provider or sorry substitute decision maker for care
if you don't appoint one. Uh I didn't get confirmation but I believe
you did in Ontario you do under the healthcare consent act. Uh but uh
I didn't get the answer which was given to me in advance. So I will
commit to following up uh Andrew after the uh the webcast to get back
to you on that. Yeah. Yeah. Here in Ontario, we have the Health Care
Consent Act and it has a hierarchy. So, you're appointed attorney for
personal care is number one that supersedes a spouse to make a
decision, a health care decision for an incapable person. And that
creates the three-way marriage, I call it, when a a senior appoints a
child as attorney for personal care, but they're still married. And
now the child's making care decisions, the spouse is not. That could
include whether you still live at home or not. So that's why it's so
complex. I call it the three-way marriage. And if you have not so if
you have not appointed a power attorney for personal care, then in
Ontario there's a hierarchy and the spouse would be number one. And
then children, but I don't know the health law in Manitoba if you have
a similar hierarchy. Uh, and then ultimately if there's no family
whatsoever, the default is we have the public guardian, which I assume
you'd have also in Manitoba, there's never a situation where there's
uh the doctor is making a decision without uh consent. There's always
a subject consent gibber. So the final one is the public guardian and
trustee here in Ontario. Dr. Schulman, you made a really good point. I
wanted to just hop on from a practical point of view. Andrew, one of
the biggest considerations we see and we would love for this to be
like mandatory as like a required element as signing these documents
is uh if the people you're appointing for health and property are
different, consider how are they going to get along and work together
because cons, you know, shelter decisions and that type of uh thing.
There are so many decisions that bleed into each other. Yeah, I think
I think uh all of these points come kind of come down to the tip
number one, have an incompat capacity plan. If you've discussed this
stuff with your with your substitute decision makers um and they're
clear on how you want them to act, you can bring a little bit of
control to this situation where it feels like you might not have any.
Uh on the other hand, if these things are unclear, if you've got
separate decision makers for separate topics and it's not clear how
they should interact, and if it's not clear when they should step in
and for what, um not only could you be left with these consequences
here, no choice, uh having to wait a really long time for maybe uh
lawyers and courts to appine on your situation, uh and maybe losing
some predictability.
But on top of those consequences, you've put your network at a
disadvantage. You've created a lot of work for uh for your children or
for your substitute decision makers uh to try to unravel this and
probably to try to unravel it at a point in time when there is a
decision to be made. And so working in advance and really having these
slightly tough discussions um well in advance uh and continuing to
have them as time goes on is really important. And uh that kind of
leads in into the next point is you can have an idea of what you want
to do in your head, but you kind of have to say it out loud. Uh very
often we might talk to uh to a couple that has a cottage, and they've
got fantastic plans about how their kids are going to take over the
cottage and they are all going to get along and swim and play in the
sun together. Uh but nobody has really asked the kids. Nobody's asked
the kids, do they have a ability to take this on? Um do they really
want to own a cabin? Do they want to own it jointly? Um and then for
uh so even if you have written it down uh you really need to engage
the people in your life that are going to be making decisions and
involved in making decisions when that time uh when that time comes.
So to make sure that your substitute decision makers, your lawyers,
your uh even your accountant’s um and your financial professionals uh
know what the document is, know that they're responsible for certain
things. Um and can really act on your best wishes. Uh which is one
reason if you're if you're one of our clients, uh you know, we ask for
your wills. We ask to see if you've got a POA. And it's really so we
can we can get a full uh full sense of the world and identify if there
are any gaps if there are any places where you know you've got an idea
of what your wishes are but you might not have all of the pieces in
place uh to ensure that that gets executed both in in your estate once
you've passed and even before that in in the case that you're still
around but don't have capacity to make your own decisions. There's
such an importance here. So, uh, uh, this is not intended to pump up
Andrew and the team, but it it's going to cuz there's a court case
that happened. And when people uh when people are in advanced
dementia, um, the there's of course a uh a difficult some difficulties
they they're likely to have with certain decision- making. And the
higher the complexity, the higher the uh decision-m capacity
threshold. People like to be satisfied to say that you're capable. So
uh if the person's not capable because their decision-m is being
impacted in some type of way, then you can still hold deeply held
beliefs. And Dr. Schulman and I just did a an assessment where keeping
documentation of these deeply held beliefs are so essential to
ensuring that your wishes are held up. And if you have that
conversation uh with Andrew, with your team at National Bank here, uh
there's a documentation trail. The nice part about Andrew, he has no
he has no uh benefit in the outcome of those types of decisions. So,
the relationship that the wealth advisor and their clients have is so
valuable for the courts because he's independent and you don't always
talk to your best friend about what's in your will. I don't at least
what's in my will or what's you know what I'm trying to budget for
aside from you know a few shenanigan hockey trips or whatever uh we uh
we try to squeeze in. But it's so important that um you get these
deeply held beliefs or you get these beliefs communicated in a way
that everybody's on the same page. And Andrew, I think if there was
one single tip to come out of this, aside from the incapacity plan,
this has got to be number two. If you can update your network and do
everything you can so that your substitute decision maker isn't
meeting Andrew and his team for the first time whenever uh they
believe your family believes you're not able to make decisions. It
just really does set everybody into a better place to do their role uh
really well. So that that's kind of the difference I've seen. Dr.
Shulman if there's anything to add but yeah well I yeah I think the
deeply held belief it's really a challenge because a capable person's
allowed to change their mind so now you get someone who's changing a
deep a longstanding belief now they've decided no I'm going to
transfer the cottage to the daughter it's not going to be in the will
divided between son and daughter I'm going to give it to her now so
that change in belief is that is that a capable decision. Is it is it
being impacted by a neurocognitive disorder? Is the person now because
of a dementic illness not able to remember their previous wish? Have
they been now influenced unduly so that the other this child will
benefit? How susceptible are they to suggestion? And so that's the big
challenge because these decisions end up being uh challenged with
litigation and that's where we get asked to either proactively see
someone to give an opinion so that it protects the lawyer acting and
there's like an insurance policy in the file to help support a
decision or I may give a verbal opinion that it's not a capable
decision that can help guide them how to deal with their client
because otherwise it ends up in litigation. We sometimes are asked to
do retrospective opinions to assist with uh litigation in the court.
These expensive um endeavors when the estate is sued over not just the
will but it could be uh inter gifts before the death of the testator
are also part of the lawsuits that we see. So these major financial
transactions in late life are often fraught with conflict. Yeah. So,
we're hearing uh planning ahead and making sure that your network's
aware of uh what I'm hearing is not only what you wish, but some of
the reasoning behind what you wish. And I'll say from our end, we do a
lot to document our conversations with our clients and what happens
through our time with them and a lot of the person's, you know, deeply
held beliefs kind of come out in those conversations, but that's not
that information is not necessarily on the power of attorney form that
you're signing to give to give somebody uh this responsibility. And
so, uh, hearing that when push comes to shove, you know, a court or
medical professional or a lawyer will examine all of this evidence
cumulatively, you know, the documentation that's in place and any
evidence that uh that comes up leading up to the incapacity event to
really get a proper understanding of the situation and what the person
might be able to do and might not be able to do. And so, the more this
stuff is out in the open, uh, the easier it is to do that. Now, of
course, like Nathan said, you know, talk to your buddy about your
will. Um, which is why it can uh it's really helpful to have these
professionals in your in your life that you can share these details
with. Um, so that uh so that because you probably don't talk to your
buddy about uh what's in your in your bank account either. Um, but to
make sure that that folks are aware and uh just flipping to the next
slide for a half second just to show how complicated a person's
network can be. Uh if you imagine the case that uh um you know not
only would your would your financial advisor and your accountant and
uh and your lawyer want to know about these documents but imagine that
you give gifts uh frequently to very and all of a sudden you're
incapable and you forget or you a payment isn't made one time and uh
all of a sudden the burser is in in the dark uh about your situation
and unsure who they can talk to and they might come to a wealth
advisor and say, "Hey, you know, I didn't get the thousand
donation. Can you send it over?" And uh and we might have to say,
"Hold on a second. There's a bit of a trickier situation
here." Uh and then there's Rose, who's has this deeply held
belief that she wants to continue to make uh make donations to a
charitable cause through her life as as she's able to, and those stop.
And so there's a wish that just uh that doesn't get executed on just
because the network's not aware. Uh so it can touch lots of areas in
in your life and uh and people like your lawyer and your financial
advisor um can definitely play a role in in helping to make sure that
those conversations uh can happen and to help facilitate them also.
Yeah. If I could just add that maybe my final medical comment I think
Andrew you hit such an important point is the reasoning behind a
decision. Many of the cases that we see with the retrospective
evaluations from litigation, it's the uh fiduciary advising, usually
it's a lawyer that they not documented reasons behind a decision and
it's often just closed questions, yes or no, but that's not reflective
of the decision-making process. And we also seen several cases where
we know that the senior was severely deaf and there's no documentation
that hearing was assisted but they that they were wearing hearing aids
that hearing aids work.
As a geriatric psychiatrist, I don't carry a stethoscope. I carry a
pocket talker. A pocket talker is an amplifier with headphones. I put
on the patient and they I talk into the microphone. This is much more
important to me in geriatrics than a stethoscope. So the reasoning to
be documented and this goes to this apprec ability to appreciate
because I we talked about recognizing the manifestations of a
condition but the other aspects of appreciation are justifying your
choice and a realistic appraisal of an outcome. Is it is it irrational
reasoning? Is it affected by delusional thoughts? How do I justify how
I made that choice? If that can be documented and they can understand
what you've told them and maybe repeat it back to you and show that
they're able to learn and remember it, then you're going to be very
confident that it's completely capable decision and you can document
that and you may not need a consultant like myself to support you. But
if you haven't done that, that that's where I see in the cases that
I'm asked to consult in litigation, these things have not been met. No
one knows and then uh medical experts comes into play to try and give
further advice if the person would have been able to understand, able
to appreciate based on their condition and healthcare problems. I
would probably say Andrew just because at the time I just if I could
possibly commandeer something for you just go to if you could go to
the next slide uh if you wouldn't mind. Um I think this is really
important the witnesses to it. It does speak to there are different
elements of what Dr. Schulman's saying you have to understand and
appreciate about each of these. Not every person who's a witness is
built the exact same way. So, just like Andrew said, having
professionals assist you does have value in those situations,
especially say uh one person has to act the same way as the next. But
something to uh consider. I just wanted to get to the next two points
because the next one establishing the incapacity boundaries. I'm going
to talk about this one very briefly, but if it's cool, we could just
finish on the next slide, right? In in one second. Um, this is
something for your incapacity plan to take away. So once again, if you
can think of when you would want somebody to investigate your own
incapacity, right? So when Dr. Schulman saying um you know have a
realistic appraisal of outcomes. Um I the uh non- geriatric
psychiatrist word for me is you know are they missing key benefits or
key risks you know things they would usually get and I think you know
what information would you expect that your substitute decision maker
you know what conversation could they have with Andrew right or his
team so they could so they could get more information or your trusted
contact so these are really want important to sit down with the with
the team. But the f the final one is probably where if we had one
minute left, I would just finish with um look for the changes. This is
like as Dr. Schulman said, the pearl. If you see a change in someone,
there could be an underlying cause. Does not mean there is. It just
means there can be. So, if you had to um you know, one thing that that
I'm really passionate about is a lot of people are being um deemed
incapable because they don't know what's in their bank account. But if
you knew that person over time, they might not have ever known what's
in their bank account. That is not the role they played in the
relationship. So if that financial managing spouse dies and the one
that doesn't manage the finances lives on, just because she doesn't
know what's in her bank account does not mean that she still can't
manage certain parts of her finances working with professionals. And
um I think that that's the nugget I would uh I would give for
everybody. Dr. Dr. Schul, if there is anything that you want to say on
this one, but we got Yeah. And I think this is um this is my key
takeaway too that uh that seeing how things change over time and how
appreciation and understanding um plays into a person's decision-
making uh might not be evident in in one decision. uh like uh like
Nathan was saying, a person might have capacity and then and then not
have capacity and then have capacity again later. Um we uh as
professionals we see you over the course of your lifetime and we and
the people around you are uh have the perspective. We are not you, but
we have the perspective to uh to see how you might change overtime and
to maybe pick up on changes that you might not notice yourself. And I
can say as a as a wealth adviser uh where we have hopefully long-term
relationships with all of our clients, uh we can notice these sorts of
changes. And it puts us in a situation where we might have to start
asking some questions. and you might experience this with us, with me
and with Paul and with Eric uh at some point during our relationship
uh that if we start to notice a change in you, we might ask some
questions. Um the they're not meant to be uh they're not meant to be
demeaning and to understand if you to identify if you can understand
us, understand complex material. We're just trying to assess what can
you understand and what can you appreciate. Uh it can be tricky for us
because we're dealing with uh sometimes complex financial topics. Uh
so to differentiate, you know, do they understand the math of it
between do they understand the risks, the rewards, complications it
can add to their life, um it can be challenging. Uh so uh appreciate
it. These are five fantastic tips, Dr. Schulman and Nathan. Uh thank
you so much for joining us. I think we were talking before this uh
presentation started that we maybe want to try to keep it to 30
minutes and uh I was optimistic but that one kind of kind of went out
the window. Uh nevertheless an incredibly engaging uh conversation. We
really appreciate hearing your perspectives and uh um you know we have
got we’ve got a lawyer and a and a doctor and a and a financial
professional in in the room. Uh this could have easily turned into a
really bad joke. Um but we uh we've uh we have covered a lot of uh
challenging material with uh two fantastic resources in in Canada uh
in in Dr. Schulman and Nathan. Um if you want to uh if you want to see
more of the education that they put out uh check out their website uh
or you can Google capacity clinic. You can also have a look at the PO
POA registry um which is uh which is helping to keep track of uh of
your POA designations and substitute decision makers and trying to
ease some of that some of that burden in uh keeping track of who can
make decisions, notifying and uh and identifying um uh the documents
that that they might need. And of course, uh, Paul and Eric and Dave
and I are always here to continue the conversation if you need. Um, if
you got to track us down on our website, you can Google Christensen
Wealth Advisors and you should find us easily. Uh, that was all for
me. Nathan or Dr. Schulman, any closing points? No, I think have the
have the conversation. I just have to continue to encourage people the
more you have that conversation um the uh the less it will cost in the
future and I do not mean in dollars alone. So, this this has been
amazing and we're really grateful that everybody was here today. Thank
you for joining us. As always, we love connecting with new people. So
if you have any follow-up questions, do not hesitate to reach out to
me or to one of the guests. Take care.
