Incapacity: Do you know if family decides for you?

Transcript

Intro speaker:

Hello, and welcome to Matters Beyond Wealth with your host, Leanne Kaufman, president and CEO of RBC Royal Trust. For most of us, talking about subjects like aging, late life and estate planning isn’t easy. That’s why we’re going to help get the conversation started on this podcast, while benefiting from the insights and expertise of some of the country’s top experts. We want to bring you information today that will help to protect you and your family in the future. Now, here’s your host, Leanne.

Leanne Kaufman:

Hello, I’m Leanne Kaufman and welcome to RBC Wealth Management Canada’s Matters Beyond Wealth. I’m delighted to introduce our guest today, Dr. Samir Sinha. Dr. Sinha is the Director of Geriatrics at Sinai Health System and the University Health Network in Toronto, and a Professor of Medicine at the University of Toronto. He’s also the Director of Health Policy Research at Toronto Metropolitan University’s National Institute on Ageing, which is where I got to know him.

A Rhodes Scholar, Dr. Sinha is a highly regarded clinician, an international expert in the care of older adults. He’s the Architect at the Government of Ontario’s Senior Strategy, and in 2014, Maclean’s proclaimed him to be one of Canada’s 50 most influential people and its most compelling voice for the elderly. Dr. Sinha is a member of the Government of Canada’s National Seniors Council, and is also currently leading the development of the New National Long-Term Care Standards for Canada.

Dr. Sinha, thanks for joining us today to talk about incapacity and why this matters beyond wealth.

Dr. Samir Sinha:

Thanks for having me, Leanne.

Leanne Kaufman:

Now the term “incapacity” is not something most people spend a lot of time thinking about or probably talking about. It’s a somewhat technical term. It’s maybe even industry jargon, frankly. But what we’re really talking about here is a time when someone is no longer legally capable of making decisions for themselves. So the most common context for the conversation is often age-related cognitive impairment or dementia. But of course that’s not the only relevant context. And in the financial industry, the topic tends to be synonymous with conversations about powers of attorney and substitute decision-making, specifically when it comes to who has authority to step into your shoes and deal with your financial assets on your behalf. But in your role, I expect the conversation would be far more common than the general public. So, how do you explain incapacity to your patients and their families?

Dr. Samir Sinha:

Well, it’s like you said, Leanne, this is a common issue that I see because as a Geriatrician, I’m seeing mostly older adults, and many who are starting to struggle with complex chronic health issues that could include things that affect their memory and thinking, and could very well be due to a dementia. And so it’s a conversation I actually have early on with all of my patients when I’m getting to know them, just to ask them, “Have you thought about who you would trust to make decisions on your behalf, around your personal care or your finances, if you were not able to do so?” Because it’s one of those sorts of things that at some point or another, any of us could be in a situation. But especially if you’re an older person and you might be starting to struggle with your memory and thinking, and it could be due to dementia, that time will come sooner rather than later.

So it’s a conversation we have to have often, because I’m more concerned about a person’s ability to make personal care decisions, to direct their care, to really understand what their goals of care are, and how we’re going to see that through. But I’m also equally concerned about their financial capacity, because often people will certainly want to make healthcare choices that might require funds such as hiring home care workers, or using their funds to live in a retirement home, or to receive other sorts of support and care. So your finances do matter. And that’s why you can’t think about someone’s capacity around personal care without also thinking about their capacity to make financial decisions as well.

Leanne Kaufman:

And I think we have to acknowledge that with an aging population living longer than ever before, these are things that are probably going to become more commonplace with those older adults as well. So in that context, who can decide that someone has capacity or does not have capacity any longer?

Dr. Samir Sinha:

Yeah, I get this question all the time, because I often get calls from financial advisors, or sometimes lawyers and families themselves saying, “We were told to come to you to declare mom or dad incapable.” And I always say, “Okay, let’s back up here and let’s talk this through.” Because if we’re concerned about someone’s ability to make decisions, my first step is to understand kind of, well, what could be affecting their ability to make decisions? Could it be something like dementia, or could it be something that’s reversible? Let’s try and figure that out. But ultimately if we really are concerned about a person’s ability to make decisions, a physician can certainly assess a person’s capacity to make personal care decisions. And a physician that knows their patient can certainly declare them to be incapable of making personal care decisions.

Where I don’t tread, because I’m not formally trained as such, is making decisions about a person’s financial capacity, because in order to be able to do that in Ontario where I practice, for example, we have official roles called licensed capacity assessors. These are individuals who’ve taken a training course through the government, through the Ministry of the Attorney General, and they’re actually certified and on a list by the government. And they’re located all across Ontario— usually people of professional backgrounds, who’ve done extra training in order to actually assess a person’s capacity to make both personal care decisions, but also financial and property decisions.

So depending on what we’re actually looking for, often I have no problems being able to deem someone capable or incapable of making personal care decisions. But when things are concerning around finances, and I know that’s something that we need to sort out, that’s when I’ll refer my patients to that website, so that they can figure out and find a person to assess their financial capacity, or the financial capacity of their loved one, and move forward through that process. And we’ll work hand and glove together so that we can make sure that things go as well as possible, so that we can do what’s right for my patient.

Leanne Kaufman:

Well, so if there’s people that specialize in doing this kind of assessment, then the impact of having a declaration of incapacity must be quite significant. So what are some of the consequences once that declaration of incapacity is made?

Dr. Samir Sinha:

These aren’t insignificant declarations, as you were just pointing out. This is a significant thing that you’re doing if you have to go down this road, because now you’re really saying that this person no longer can be expected to be the person to make the decisions around their personal care or their financial choices.

Now, certainly people can still have input and they can maybe make certain types of decisions. But when we’re really talking about one’s capacity to make personal care decisions or financial decisions, for example, we’re talking that globally, those big overall decisions, are things that they can no longer handle themselves. And this is when, for example, if you have a power of attorney in place, then this is when those become active, and that’s when those become recognized. So these are really, really big steps. And you want to make sure you do it well, because you want to protect the dignity and the rights of your patient, but you also want to do the things that are in their best interests as well. That’s why there’s a real process that we need to follow, and people need to make sure they’re following the right process, because if the corners are cut for example, then it can make things a lot more messy very quickly.

Leanne Kaufman:

We also know that these instances of incapacity don’t always, or rarely would happen overnight, where it goes from on to off, like a switch. There are often these days of grey, or some days are better than others. So how does that factor into the kind of capacity assessment? And as a kind of follow-up to that, how do you have those conversations with the family about the signs they should be looking for, when we’re in that period where it’s not yet clear?

Dr. Samir Sinha:

Yeah, and I think this is the challenge when people are starting to say, “I’m having concerns about my loved one’s capacity to make personal financial capacity decisions.” I ask people to start gathering evidence. If my patient is saying, “I’m having concerns,” I’m saying, “Give me examples.” So if families say they have concerns, I say, “Give me examples.” Because certainly we could have an off day, if there’s a day where you’re just not feeling well, and we think it’s a temporary condition, you might be fully back to normal tomorrow. But if we’re now seeing a pattern where increasingly decisions are becoming more and more problematic, less reliable, and we’re not sure that that person now consistently has the capacity to make either those personal care or financial decisions, gathering that evidence is important, especially for me as a clinician, for a person who’s doing a financial capacity assessment, because it’s best to kind of back up your assessment and your decision with the facts, with evidence.

And then also making sure that your subsequent testing really is helping to demonstrate a person’s consistent ability to demonstrate their lack of ability to make personal care decisions and financial capacity. So it can’t be based on a person’s opinion. There needs to be facts and evidence, and all of this needs to be carefully documented. Because again, as you said, this is not an insignificant situation where you go down this path. And when people don’t follow the process properly for example, then it’s very easy for me as a clinician, or other people, or other lawyers, to easily question whether the due diligence had been done, and whether a person’s capacity had been fairly assessed.

That’s why I say it gets messy very quickly, because when I see families behaving badly, when I see situations of abuse, when I see situations of sloppiness, for example, it really can hurt the financial interests of an individual. It can hurt their personal care interests, and it can really threaten relationships between family members when things aren’t done in a very stepwise, appropriate and dignified way.

Leanne Kaufman:

Yeah, those are all great practical applications for our listeners, because I think many of us when we start to see the signs, wouldn’t even really know where to start. So following a process is a great piece of advice. What would be that first step that you would recommend someone to take if they’re worried that their loved one is maybe potentially starting to make decisions that do put them at risk?

Dr. Samir Sinha:

I think the first step is really that if someone has concerns to understand: What are your concerns, what are you seeing? For example, you may want to talk to your loved one, to also get their thoughts on whether they’re seeing what you’re seeing, because if they are also concerned about their ability, then you’ve got what I like to call a therapeutic alliance. You and your loved one, both are saying, “Yeah, I have the same concerns as well.” And it makes it easier to get help. Because I’m often getting calls from family members saying, “I don’t think my dad’s with it anymore. Can you do something about that?,” for example. And often you have to remember that my client is my patient. It’s not my patient’s son. It’s not my patient’s daughter. My client is my patient, if you will.

And so I’ll always say to family members, if they’re concerned about their loved ones’ cognition, “Talk to them about it.” Right? See if they see the same issues, because if they do, then this can lead to a partnership to say, “Well, maybe we should make an appointment to see your doctor or your primary care provider, so that we can actually unpack this a bit further.” Because as I said, it might be due to a condition like dementia. It might also be due to anemia or low blood pressure, something that can be easily treated and reversed, for example. And I think that’s really the first step to go because again, if someone gets into a complicated situation where they say, “I don’t want to do anything about this, and you can’t tell me this, and if you don’t like this, I’m going to change the power of attorney …” I mean, oh I see that too, then that’s when you might have to consider what next steps are.

And that’s when you might want to get guidance from your own doctor and say, “How should I approach this?” Or, “How should I do this?” Or see, are there ways in which you can engage with your loved one’s doctor? Not that they can be free to have a chat with you, but sometimes they’ll be very receptive for you to share information that can help them then figure out if there’s something more they can do for their patient, maybe your loved one, so that they can help to figure out what the right next steps are. But I would say have a conversation first with your loved one, share with them your concerns. And then certainly see if you can work with them to help see if their own primary care provider can start looking into this a bit further to determine what might be the issue going on, and what might the right next steps be.

Leanne Kaufman:

And I think it’s great that you mentioned too, that it doesn’t always mean that it’s going to lead to some sort of irreversible dementia diagnosis either. It could be something quite simple, that’s easily reversed. So it doesn’t need to be as scary as a conversation perhaps, as some of us might think it’s going to turn out to be. So if there’s just one key message or one real takeaway that you would like this audience to have when it comes to the topic of incapacity, what would that be?

Dr. Samir Sinha:

The key is to appreciate that when people are always thinking about advanced care planning, when I ask people about that, they often say, “Oh, I’ve got a Will. And my son gets this and my daughter …” And I say, “I don’t honestly care what happens after you cross the finish line. That means nothing to me unless I’m in the Will.” Otherwise, I care about the last a hundred yards and that last a hundred yards could be messy. It could be complicated. You might be hit by a car tomorrow and be in the ICU. You might end up having dementia. And at some point in time you may be in a situation where you’re not able to make personal or financial decisions. So the thing that I want everybody to do after listening to this podcast is just ask your question: Who would you trust to make decisions on your behalf if you were in a situation like that?

Then think about appointing them as your power of attorney, for example, and have that conversation. Let them know what you’d want. Because regardless of talking about, if you are not in a situation of incapacity in the future, someone ultimately will have to make those decisions on your behalf. If you don’t choose those persons, the government will choose those persons for you. And if you want to have real control about your future, start thinking about who you would trust in those situations, and let them know what you’d want them to do on your behalf. And I think that’s my key takeaway from here. And then right before this, we’ve certainly spent a lot of time, Leanne, talking about, how do you negotiate those tricky situations when they start to pop up?

Leanne Kaufman:

Yeah. When you get into talking about things like who do you trust to look after both your personal care and your finances, that’s when we really start to get into the trickier or thornier topics about who’s appropriate to be your power of attorney, which is actually a topic for another podcast that we’re doing. So it’s a nice way to refer back. So thank you so much, Dr. Sinha for joining us today and sharing your insights and your advice on incapacity and why this matters beyond wealth.

Dr. Samir Sinha:

Thanks for having me, Leanne, it’s always a great conversation with you.

Leanne Kaufman:

You can find out more about Dr. Samir Sinha and his work with the National Institute on Ageing at NIA-Ryerson.ca. Dr. Sinha can be found on Twitter @DrSamirSinha and the NIA can also be found on both Twitter and LinkedIn. Until next time, I’m Leanne Kaufman. Thank you for joining us.

Outro speaker:

Whether you are planning for your own estate, the needs of your family or business, or you’re an executor for a loved one’s estate, we can help guide you, simplify the complex, and support your life’s vision. Partner with RBC Royal Trust and ensure your legacy will thrive for generations to come. Leave a legacy, not a burden^TM. Visit rbc.com/royaltrust.

Thank you for joining us on this episode of Matters Beyond Wealth. If you’d like more information about RBC Royal Trust, please visit our website at rbc.com/royaltrust.