The OBA Health Law Section and Trusts and Estates Section held an informative program on the issues of capacity and how it impacts consent on October 23, 2018. The program chairs, Michelle Moldofsky and Liz Bozek, enlisted a dynamic and experienced panel to discuss the issues that impact capacity. (Michelle Moldofsky is a member-at-large of the OBA Health Law Section and Liz Bozek is a member-at-large of the Trusts and Estates Section).
The panel included: Dr. Carol Cohen, a geriatric psychiatrist; Mary Jane Dykeman, a lawyer who regularly assists hospitals, long-term care homes and community health care organizations; and Nimali Gamage, a lawyer whose practice focuses on guardianship, power of attorney issues, elder law, estate planning, estate litigation, capacity and ODSP issues.
The panel discussed the varying levels of capacity and consent with respect to personal care. They considered the impact of capacity on personal care decisions, issues around the appointment of a power of attorney and the challenges faced by health providers in obtaining consent. The panel emphasized through their discussion that capacity can fluctuate and that a person may be capable for some issues or aspects of decision making even if a finding of incapacity was made in relation to another issue. The panel highlighted the importance of informing clients of the legal complications which can arise when multiple family members are appointed power of attorney and what happens when consent was obtained using an outdated power of attorney.
In addition to discussing the legal test, the panel provided useful examples and discussed the practical challenges faced by counsel, care providers, financial institutions and family members. The program was well received and a successful collaboration between the two sections.
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