COMMUNICATING
Age, Disability, and Dementia-Friendly Communicating
I
f you are a legal professional, you likely interact with a number of older adults, people living with disabilities, or people living with dementia in the course of your practice.
Sara Pon
The Representation Agreement Act allows an adult to choose who will make health care, personal care, or routine financial decisions for the adult when the adult is incapable. Under this Act, a representative must consult with the adult as much as possible. A representative must comply with the adult’s wishes if it is reasonable to do so.
risky. It is only when the adult does not have decision-making capacity that the representative or attorney may be able to override the current wishes of the adult, depending on the specific circumstances, the requirements in the legislation, and the provisions of the agreement. The decision-maker must still comply with prior expressed wishes the adult made when capable.
Having an age, disability, and dementia-friendly practice can help your clients feel more comfortable, be more willing to use your services, and make your services more user-friendly for all people, regardless of age or ability.
Under the Health Care (Consent) and Care Facility (Admission) Act, if the adult does not have decision-making capacity for the health care decision and does not have a representative, the medical professional can obtain substitute consent from a person on a hierarchical list of possible temporary substitute decision-makers (TSDMs). A TSDM must consult with the adult as much as possible. There is no duty to comply with the adult’s current wishes, but the TSDM must comply with the adult’s wishes expressed when the adult still had decision-making capacity.
Duty to Consult
The Power of Attorney Act allows an adult to choose a person to make financial decisions for the adult, either after incapacity or before and after incapacity. An attorney must encourage the adult’s involvement in decision-making and must take into account the adult’s current wishes. There is, however, no duty to comply with these wishes if the adult does not have decision-making capacity.
All types of substitute decisionmakers have a duty to consult with the adult. The exact responsibilities differ, however, depending on the type of decisionmaker. Effective communicating strategies are important for substitute decision-makers to effectively fulfill their duty to consult.
For both a Representation Agreement and a Power of Attorney, if the adult still has decision-making capacity for the decision at issue, the representative or attorney cannot override the wishes of the adult. The adult is presumed capable and has a right to make whatever decision the adult wishes, even if it would seem
Having an age, disability, and dementia-friendly practice can help your clients feel more comfortable, be more willing to use your services, and make your services more userfriendly for all people, regardless of age or ability. An age-, dementia-, and disability-friendly practice covers a range of practice considerations, including knowledge, in-person interactions, written materials, and the physical environment. Such a practice will facilitate more effective communication between practitioner and client. The following strategies are also useful for substitute decision-makers in fulfilling the decision-maker’s duty to consult with the adult when making a decision that impacts the older adult.
Volume 29 Number 4 Winter 2020
The Scrivener | www.bcnotaryassociation.ca
Under the Patients Property Act, if the adult does not have decisionmaking capacity and does not have a representative or attorney appointed, the Court can appoint a committee [comm-it-tay]. The committee has a duty to encourage the adult’s involvement in decision-making.
Knowledge and Language There is significant social stigma around aging, disability, and dementia. To have an age- and disability-friendly practice, you must avoid stereotypes. TABLE OF CONTENTS
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