Who signs for an adult?
Two of my staff were giving a presentation to an organization who has both children and adults in its care. Questions were asked about who could sign for the adult (18 or older) when that adult may not have capacity to sign or consent. This question took me back to the work I did for 19 years. I sat down with those staff and gave them a long explanation and by the time I finished, I realized I should do an article on the issue.
A person (an adult) is presumed to have capacity to sign a document or to consent unless a court has declared that the person does not have capacity. Where a court so declares, there is a court order making the declaration and usually indicating who is the personal or property guardian for that person. If the document or consent relates to a financial or property issue, the property guardian has the authority, unless limited by the court order. If the document or consent relates to a personal matter, then the personal guardian has the authority to sign, unless limited by the court order.
It is also possible that a Certificate of Incapacity can be issued under The Public Guardian and Trustee Act and the Public Guardian and Trustee can acknowledge that it will act as property guardian. In that instance, the Public Guardian and Trustee has authority to sign documents and consent, related to property matters, subject to any limitations in The Public Guardian and Trustee Act.
Many times, particularly with younger adults, there is a reluctance to trigger the court order or a Certificate of Incapacity process. The court process can be expensive and there is a fear that the adult will be stigmatized by the making of the declaration of incapacity. The adult may not have assets that would justify the time and cost of a court application. In these instances, uncertainty can prevail as to the ability to sign a document or a consent. Remember, an adult is presumed to have capacity unless there is a court order or a Certificate of Incapacity.
Capacity or incapacity is not just black and white. Adults may function well in one area, but not function well in another area such as judgement. Adults may act normally today, but on another day, it would appear that their abilities are impaired. Being on or off medications may be a factor. Emotions and stress will also be a factor. All of this is to say that on a particular day an adult may or may not have capacity to sign a document or consent.
So, when important decisions have to be made, how do those working with the adult determine whether the adult can sign a document or consent?
In large part, the steps to be taken will depend on the magnitude or gravity of the decision or the consent. If it is an extremely important decision or document, greater care should be taken by professionals in assessing capacity. Having the adult examined by a doctor, phycologist, psychiatrist, psychiatric nurse or other health professional, may be the best course of action. I know lawyers sometimes have this done when taking will instructions when capacity might be an issue.
For decisions that are less significant, it may just involve the professional dealing with the adult making an assessment of the adult’s capacity that day. First by explaining, very carefully, the contents and the implications of the document or consent.
Now moving to the access and privacy world, an adult can request access to the adult’s personal information by filling in an access request form to a government institution, local authority or trustee. In this case, the public body will have to determine at the time of delivery of the access request whether the adult understands the nature of the access request being made and if so, they should proceed with processing the access request.
On the privacy side, adults can consent to the release of the adult’s personal information. Again, where an adult’s capacity is in question, the head of the government institution, local authority or trustee will have to determine whether the adult, at that time, has the capacity to consent.
Q. What does the legislation say?
A. The Freedom of Information and Protection of Privacy Act (FOIP), section 59 and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP), section 49 provides:
Exercise of rights by other persons
Any right or power conferred on an individual by this Act may be exercised:
(b) where a personal guardian or property guardian has been appointed for the individual, by the guardian if the exercise of the right or power relates to the powers and duties of the guardian;
(c) where a power of attorney has been granted, by the attorney if the exercise of the right or power relates to the powers and duties of the attorney conferred by the power of attorney;
(e) by any person with written authorization from the individual to act on the individual’s behalf.
The Health Information Protection Act (HIPA), has a similar provision, section 56 which provides as follows:
Exercise of rights by other persons
56 Any right or power conferred on an individual by this Act may be exercised:
(b) where a personal guardian has been appointed for the individual, by the guardian if the exercise of the right or power relates to the powers and duties of the guardian;
(e) where the individual does not have the capacity to give consent:
(i) by a person designated by the Minister of Community Resources and Employment if the individual is receiving services pursuant to The Residential Services Act or The Rehabilitation Act; or
(ii) by a person who, pursuant to The Health Care Directives and Substitute Health Care Decision Makers Act, is entitled to make a health care decision, as defined in that Act, on behalf of the individual; or
(f) by any person designated in writing by the individual pursuant to section 15.
Q. What if I have a power of attorney?
A. The legislation contemplates a property or personal attorney having the power to obtain information regarding the adult. It should be noted that the property attorney should only be able to get financial or property information and the personal attorney should only get personal information including personal health information. The adult could set out limits in the power of attorney regarding accessing information. Those relying on a power of attorney must read that document to determine any limits.
Q. If an adult has appointed an attorney, can an adult request information?
A. The answer is “yes” if the adult has that particular day the capacity to understand the nature of the request and the consequences of making the request. Appointing an attorney under a power of attorney does not take away an adult’s ability to make decisions or request information. Whether the attorney agrees or disagrees with the decision or consent does not matter. Thus, the adult, who has capacity on that day, can independently make an access request for information or consent to giving information to another person or organization.
Q. What if I am a proxy under a health care directive?
A. The Health Care Directives and Substitute Health Care Decision Makers Act, 2015 provides for adults making a health care directive where they appoint a proxy. The Act provides:
Personal health information to be disclosed
21 Notwithstanding any other Act or law, personal health information is to be disclosed by a treatment provider to a proxy, nearest relative or personal guardian if it is necessary to enable that person to make an informed health care decision.
So, unless limited by the wording in the health care directive, a proxy would have the right to request personal health information in order to make a health care decision.
One would also note that section 21 contemplates providing personal health information to a nearest relative or a personal guardian in order to make a health care decision.
Q. Does HIPA contemplate and allow disclosure to a proxy or nearest relative?
A. The answer is yes. Subsection 27(4)(l) provides as follows:
27(4) A trustee may disclose personal health information in the custody or control of the trustee without the consent of the subject individual in the following cases:
(l) where the disclosure is permitted pursuant to any Act or regulation;
Q. Are there any obligations on the trustee?
A. Again the answer is yes. Section 21 of HIPA provides as follows:
Duty where disclosing to persons other than trustees
21 Where a trustee discloses personal health information to a person who is not a trustee, the trustee must:
(a) take reasonable steps to verify the identity of the person to whom the information is disclosed; and
(b) where the disclosure is made without the consent of the subject individual, take reasonable steps to ensure that the person to whom the information is disclosed is aware that the information must not be used or disclosed for any purpose other than the purpose for which it was disclosed unless otherwise authorized pursuant to this Act.
Q. Can an adult do anything else to authorize someone else to obtain information?
A. The answer is “yes”. FOIP subsection 59(e), LA FOIP subsection 49(e) and HIPA subsection 56(f) contemplates something in writing, signed by an adult who has capacity on a particular day and understands the nature of the document being signed. This could be less formal than a power of attorney, a health care directive or court order. It could be on a form designed by the organization. The head of the government institution, local authority or trustee would need to, as best as the head can, determine whether the adult had capacity at the time of signing.
I hope this blog has clarified an area that at times is complex. It is always important to remember that an adult has capacity unless there is a court declaration or a Certificate of Incapacity. Professionals will have to, on a regular basis, determine whether a particular adult has capacity to sign or consent. Those decisions will be influenced by the seriousness of the consequences of making the decision. If in doubt, professionals can ask for an assessment from another professional, but should always start from the point of view that an adult has capacity. Being eccentric, difficult and non-cooperative does not necessarily indicate lack of capacity.
Other helpful resources on this topic can be found at the Public Guardian and Trustee website: https://www.saskatchewan.ca/government/government-structure/boards-commissions-and-agencies/office-of-the-public-guardian-and-trustee