A GUIDE TO THE
CERTIFICATE OF
INCAPABILITY PROCESS
UNDER THE ADULT
GUARDIANSHIP ACT
Presented by:
LORI SWANSON
Objectives for today:
1. Review legislative changes
2. Overall Process for Issuing
Certificates of Incapability
3. Physician Involvement
4. Billing information & working with
the Public Guardian & Trustee
2
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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
Legislative History
3
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
BC’s Adult Guardianship Laws
4
 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
Ombudsperson’s Report 2013
Adult Guardianship Act
Part 2.1 – STATUTORY PROPERTY GUARDIANS
Part 3 – SUPPORT & ASSISTANCE FOR ABUSED
AND NEGLECTED ADULTS
6
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)
Capability is Variable
Court as a Last
Resort
Right to Self
Determination
Just Enough
Support
Presumption
of Capability
Guiding Principles
Autonomy
Protection
9
Client’s Home
10
Statutory
Property
Guardian
Committee
of Estate
PGT
makes
financial
and legal
decisions
What is a SPG/Committee of Estate?
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
What Decisions Can be Made?

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
 Now,
much better!
PGT coordinates the work/paper flow
In 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
Determine the
Need
Assessment
Health Authority
Designate
Decision
Second
Assessment,
Reassessment,
and Court
Review
The Certificate of Incapability Process
Certificate of Incapability
17
PGT
Health
Authority
Investigate
Determine the Need
The First Step
:
Financial
Institutions
Family and
friends
Service
providers
PGT or
Health
Authority
Care
facility
Landlord
Health
Authority
Referrals
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
No
Other
Person
Risk
to
Assets
Adult May
be
Incapable
Public Guardian and Trustee Investigation
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
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
Emergency Situations

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
When does the certificate of
incapability process begin?
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
Assessment
Medical
Component
Functional
Component
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, or
significant 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
THE MEDICAL:
http://www2.gov.bc.ca/gov/DownloadAsset?assetId=616BAF9033374BBF98C4F1DBBA
15F97E
Old Medical Form
Functional Assessment
Let’s take a tour of forms

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
Assessment may be based on
observational or collateral
information if the adult:
Refuses to
participate
Cannot be
accessed
Cannot
participate
Conducting Assessment Without 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
PGT
 A HAD
 A health authority
 A 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 Form
Collateral information has been gathered and analysed
Adult has been properly notified
Determination of adult’s incapability
Completion of Functional Component Form
Completion 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
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,
IHA Client Data - since JAN 2015
50
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?
Step 1. Review HAD Information
Package and determine if additional
information is required
Step 2. Consider and apply criteria
before making a decision
Step 3. Provide notice of intent to
issue certificate of incapability and
opportunity to respond
Step 4. Decide whether to issue
certificate of incapability
When the HAD receives a report of an adult’s
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
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.
Exception to Notification Requirement
The HAD must consider any response
from adult, spouse or family before
making a final decision. May need to:
 Clarify or obtain additional information
 Revisit part of the process
Reasons to not issue may include:
 Procedural error
 Family member/friend now able to assist
 New evidence adult has treatable condition
 Adult’s situation changed, no longer need to
make decisions
Step 4: HAD Decides Whether to Issue
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
PGT and health
authority consult
Assessment
Within 40 days of
notice that the
PGT is statutory
property guardian
Any time after
the second
assessment
Reassessment
Adult or someone acting on their behalf
can request a second assessment
Adult must be reassessed if any of four
instances arise
Second Assessment and Reassessment

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.
Second Assessment or
Reassessment – Best Practices
PGT satisfied
adult no
longer needs
SPG
Following
second or
reassessment
adult is
capable
Court rejects
determination
of incapability
and ends SPG
Court
appoints
private
committee of
estate
Ending Statutory Property Guardianship
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