THE TAKEN
Reader's Digest Canada|April 2021
IF YOU FAIL A MENTAL CAPACITY TEST, YOUR PROVINCE CAN SELL YOUR HOME, MANAGE YOUR MONEY AND LOCK YOU IN LONG-TERM CARE. BUT WHAT IF THE TEST WAS WRONG?
Sharon J. Riley
MURIEL SHAW had always said the only way she’d leave home was “feet first.” For Shaw, a retired British Columbia Institute of Technology clerk in her 80s, home was a double-wide trailer in Coquitlam. Shaw was living an independent life and had endured a series of challenges, including the loss of her partner, Mel, in 1996 and breast cancer when she was in her 60s. At the end of 2010, Shaw didn’t seem herself: she was anxious and confused. Chris Jarvis, her youngest son, said she was “just acting strange.” The family took her to the hospital.

After Shaw was admitted, hospital staff decided to give her a capacity assessment: a common evaluation administered to people who seem disoriented. The goal is to determine whether a person has the ability to understand information and foresee the consequences of their actions or decisions. And, though doctors often give these assessments, the responses lead to a legal outcome rather than a medical diagnosis. If the assessor determines that a person is incapable of making some or all of their own decisions, a “certificate of incapability” can then be issued. These certificates have different names depending on the province, but they all have more or less the same result: from that moment on, some or all of a person’s autonomy may be taken away for good.

Being deemed incapable means that a person’s life decisions—what they spend their money on, what health care they receive, where they call home— may be delegated to another party. In some cases, that proxy is a family member; in others, it is the provincial public guardian system, whose staff may meet with the person rarely, if ever. The system is designed to protect against elder abuse and errors in judgment; it is an attempt to safeguard some of society’s most vulnerable, but it risks doing so at the cost of their liberties.

After her capacity assessment, Shaw was deemed incapable. (Jarvis told me that she was showing symptoms consistent with early-stage dementia.) The people around her immediately began trying to work out who would make decisions on her behalf. She had three children, and they had different ideas about what would be best for her. Jarvis said that social workers and hospital staff determined there was no suitable place for Shaw to live among her family, and though she wanted to remain at home, her new care workers wouldn’t allow it.

Shaw was moved to a long-term care facility. She started writing in a journal there, in June 2011. She seemed to want to make the best of her situation, and on the first page, she put down a rosy title for her project: “New Beginning!” But her entries outlined a growing list of concerns: “My small room lets me see outside, food is available, etc., but I am still very sad and lonely,” she wrote. “Wish I could be home rather than in the hospital (or whatever this place is called!).” While Shaw was getting acclimatized to her new living situation, Jarvis and his siblings argued over how their mother’s money was being managed. To settle the matter, Jarvis asked B.C.’s Public Guardian and Trustee (PGT) to become involved. The B.C. PGT is a government-designated corporation that steps in when there isn’t a family member or close friend available to take responsibility for a person deemed incapable. “If we’d had family harmony and money, this would not have happened,” Jarvis said. “It wasn’t ideal, but what was the alternative?”

Shaw is not alone in spending her older years deemed incapable and living under the oversight of the PGT. In Alberta and B.C. respectively, public guardians reported 7,832 and 7,904 adult clients from 2017 to 2018. The public guardian in Ontario managed the finances of approximately 12,500 people in 2019, about half of whom were seniors. Billions of dollars—savings accounts, assets, pensions—are managed by public guardians across the country.

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